Motion For Summary Judgment /Plaintiff Mark Halburn Deposition #07-c-298

-a ~ ., ~ cI! ~ ~.

. ~ 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 of the value of their 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

{C0043539. 1 }

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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 HAL BURN ,

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.): 2 3

On behalf of City of Hunicane, 3 4 West Virginia, and Ben Newhouse: 4

PULLIN, FOWLER & FLANAGAN, PLLC 5 5 By: James A. Muldoon, Esquire

901 Quanier Street 6 6 Charleston, WV 25301 7

304-344-0 I 00 8 7

8 On behalf of Cleveland Construction, Inc.: 9 STEPTOE & JOHNSON, PLLC 10

9 By: Paul A. Konstanty, Esquire Chase Tower, Eighth Floor 11

10 P.O. Box 1588 12 Charleston, WV 25326-1588 13

11 304-353-8170 12 14

ALSO PRESENT: 15 13 Dolores Jean Halbum 16 Bette Damron, The Travelers Companies 14 Todd Bergstrom, summer clerk 17 15 Donald K. Garrett, Jr., videographer 18 16 19 17 18 20 19 21 20

22 21 22 23 23 24 24

25 25

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. KONST ANTY: 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 ~

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 1

fi 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? i 16 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 of them 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? 1 1~ __ ~~~'~~I'~~~==~~=-______ ~~~~~~~I'~~P~'==~~~ ____ -4'~

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 HAL BURN , JULY 23, 2008

Page 14 Page 16 * (, .~

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, ~

~

4 Q. Where did you work before Sitel? 4 your web page? t;;

~ 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

~ 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

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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.

, ~

17 A. I lived in a hotel. 17 Answer it if you can. ~

i 18 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? I 20 Q. Were you fired or what happened? 20 A. Yes. ~ 21 A. I was fired over creative 21 Q. Why? I 22 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

~ , 24 there, and things di~n't work out. 24 someone who threatened a deputy's life to ~ 25 Q. Was that a full-time job? 25 home confinement, and I felt that that was ~ ,1'

Page 15 Page 1 7 ~ "

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2 A. It was, very. 2 much too light of a sentence for somebody i 3 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 ~

" 5 Q. Conway, South Carolina? 5 his home confinement and ended up going to ~

~ 6 A. Right. The Myrtle BeachIFlorence 6 pnson. ~ 7 market. 7 Q. Okay. And you objected to that in t

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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 i 10 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 I 15 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 !

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18 Q. Your case. 18 mandamus because he did not sit in hearing :~

~ 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 .~

') 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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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 of Judge 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 of business that I generated. 24 25 Q. Okay. Did you have a license for 25

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that? ~ A. Yes. i Q. 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? I A. 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. I Q. Why did you stop?

A. I wasn't making enough money. ~ Q. And it says you were a captain for t

Page 21 ~ , I

East 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,

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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



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1 2 3 4 5 6 7 8 9

12

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 of being away from my wife, and we had some nephews that we were taking care of, and I left there because I got tired of being 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



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 of unemployment 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 of unemployment 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



Page 34

1 2 West Virginia division after two drivers 3 rolled a couple of cars 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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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Page 3 6 ~ ~ @ 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 i

j5 announcer that they had to do that show then ~ took over those duties. He just recently 1 le,c,t. U 11 ~

Q. Was that a two year, two year job? ~ Correct. il

~: 2003 to 2005? ! A. It was late 2003, early 2005, so it i

was 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 I part-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~~orked there 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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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~~~ .. ____________________ ~!

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

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?

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

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.

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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 moved Dolores -- there was a 12 couple of months 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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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Page 44 .~

R ~i

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? I Q. 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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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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. i California, 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 today.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 :,

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1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 l8 19 20 21 22 23

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

1 2 3 4 5 6 7 8 9

10 11 12 13

Page 48 \) ~ " " ~

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. Itl was right -- okay. The last municipal i

city 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? I 21 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 i 24 Q. -- city inspector about the fire? 24 property next to you? ,

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13 (Pages 46 to 49) f011 b12a-1 cae-4351-a011-04e1c42b5e3c


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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 of the 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 of it i

2 1 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 ~

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1 i 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~

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-. 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 of woods 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

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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 I 24 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

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1211 A. The noise, the vibration -- 2 blasting occurred you put, you made mention I

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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 I 78 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 of Kanawha 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? ~

1176 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 2 4 prefer to work in the evenings for issues of ~

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1 & 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 contract was 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 i blasting 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 ~



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 I 4 a day. 4 excessive. I recall on the 4th of July I ~

56 Q. During this time period when.;he 56 had g?nhe in tTohhave aM sleep 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 of July, 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 I 19 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 ~

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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 BB&T 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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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.

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1 2 VIDEOGRAPHER: This concludes tape 3 number 1 in deposition of Mark 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 of Mark 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 of homes, 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 2 1 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

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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



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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 of your 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

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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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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 of your 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.



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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.

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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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the 4th of July 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 of acting 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,



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 of police? 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 neighborhood for 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.



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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



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 of us 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 of your 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 of your 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 ~ a 4 to make a huge amount of money and, you !.

5 know. ~ ~

6 Q. Now that the construction is I 7 complete, you're still complaining about the i 8 Wal-Mart being next to you; correct? t~

9 A. No. I'm complaining about the i 10 traffic that is generated by the Wal-Mart I! 11 being next to me and the lights that are, l 12 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 I 17 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,

~ 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

I 9 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 I j

14 you're sitting out in the front lawn you're, i 15 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

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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.



Page 94 Page 96 • ~

1 1 ~ ~

2 Q. When did you, when did you file suit 2 A. Whittier. I 3 against the company? 3 Q. Whittier? ~ 4 A. It would have been sometime during 4 A. Whittier. ~

5 1990. I don't remember the exact month. 5 Q. Do you recall the name of the ~ 6 Q. And what, what, what jail were you 6 doctor? I

~ 7 in, what county and city? 7 A. No. ~ 8 A. I was in the San Bernardino County 8 Q. Do you know what you were being ~ 9 Jail in Rancho Cucamonga, California. 9 treated for? ,

10 Q. And you're -- . lOA. My mother, who had lots of ~ 11 A. We were told, later that the piece 11 psychiatric treatment herself, and they later i

~ 12 that they gave me belonged to another 12 basically told me she was the problem, felt ;j

13 shelving unit that ended up screwing up a 13 that I was, just needed to see a child i 14 hundred thousand dollar order from a company 14 psychologist or psychiatrist. I don't even * 15 that told them if anything else was screwed 15 remember. There was a Dr. Roman. I fi 16 up they would no longer do business with the 16 remember his name. i 17 company, and so they basically said, had to 17 Q. Do you know if you were diagnosed l 18 come up with something to justify to keeping 18 with any, any condition? i 19 their contract. And that was -- ironically 19 A. No. As a matter of fact, when I i 20 the shelving unit ended up getting lost. 20 was in college I went back because I had a .~ 21 When I got out of jail and went to get it, 21 younger sister who used to like to throw t 22 they couldn't even find it. 22 that in my face, and I went back and met 1 23 Q. What was the name of the company? 23 with both of them and they basically told me 3 24 A. C and 0 or 0 and C. It was some 24 you'll remember that you only saw us for a ~

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1 1 ~ ~ 2 based in Ontario, California. 2 And do you know why? I said, No. It's ~

3 Q. Did you have a gun? 3 because we told your mother that she was ~ 4 A. No. I don't own a gun, didn't own 4 nuts and that you were okay and that she was .j

5 a gun. 5 wasting her time bringing you here. i 6 Q. Have you ever had a gun permit? 6 Q. Do you know what your mother's i 7 A. I have never had a gun permit. I 7 psychiatric problem was? ? 8 have never needed one. I've owned one gun 8 A. She's very -- I would say she's ~.' 9 in my life, and it was a gift from the 9 manic depressive, and at one, at various a

10 grandfather of somebody that I was dating, 1 0 points when I was in junior high and high I 11 and I had the firing pin in a safe deposit 11 school she was suicidal. i 12 box and the gun at home, and I sold it when 12 Q. Is she still alive? ~l 13 I was in college to pay for mition one 13 A. Yes. ~ 14 semester. 14 Q. SO you've had no, no psychiatric ~

15 Q. And the second time -- 15 treatment or psychiatric medications since you I 16 A. It was never even fired. 16 were a child? n

& 1 7 Q. The second time you were arrested 1 7 A. None.! 18 was when? 18 Q. Do you, do you drink at all? ~

~ 219

0 AQ' WOk as theHincident a yeahI' °df so ag~. . 21 09 A. NWatelr. h l? 3

. ay. ave you ever a psychiatnc Q. 0 a co 0 . ~

2 1 treatment? 2 1 A. I typically when I go on vacation J 22 A. When I was a child. 22 will have a drink or buy a four pack of ~ 23 Q. Where was that? 23 Bartles and James about once a year. And I ;L.,"3~";;~;r~f:~~:"" ,. ,'. ,_,_,.,,_~ ,~L,,~~~~~~~~l;;: :{~~~,,,_.J



Page 98 Page 100 J ;~

~ 1 1 ~

2 were in Myrtle Beach the year that Daniel, 2 gravel lot. And literally I would go out ~ 3 her nephew, came with us, and I had a, I 3 between satellite breaks. I did newscasts ~ 4 went to Margaritaville and had a margarita, 4 twice, you know, two or three times and ¥.

5 banana one. 5 hour, and I would fill in the rattlesnake I 6 Q. Okay. 6 holes on a daily basis. We had to shoot ~ 7 A. We don't have alcohol in our home. 7 one in the parking lot one day so that this ~ 8 Q. One other, one other question. The, 8 young, so this lady would, could go to her .~ 9 I think it was a radio station or TV station 9 car because it was near the tire. And I ,~

10 that burnt down that you complained about 10 said, Look, if we don't take care of some of i 11 where you worked and you said it later 11 these issues -- and as an insurance agent ~ 12 burned down? 12 that had training for safety and things like ~ 13 A. Yeah, KECR. 13 that, there were some concerns. I said, ~

1145 Q. KECR in California? 1145 We're going to have a fire, and if there's a ~I~,'

A. Well, the studios are actually in fire it will take out some of the towers, it ., 16 Moreno but the license say Alcone (phonetic). 1176 could take out the studio. I was told, Oh, ~ 1 7 Q. Okay. And that occurred, the fire you're a troublemaker, we've never had a I~ ~ 8 occurred about two months or so after you -- 1198 problem, God will take care of us, because :, 19 A. No, the fire occurred several years it was a Christian radio station. And in 2 0 later. 20 2003 the brush fire took out, took down one I 21 Q. Several years'after you worked there? 2212 tower and damaged an apparatus around the .~ 22 A. And it was, you know, basically I other five or six towers. And did not ~ 23 said if you don't cut this brush down, if 23 damage the studio mostly because the ' 24 there's a fire -- the fire department would 24 combustible materials near the studio I had i

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you mow, keep the brush 30 feet away from anything that you don't want to bum or to be damaged. And we had an engineer that was like, Oh, they're full of, you mow, I won't repeat the word in front of you, but, you mow, and we've never had a problem here before and, you mow, just, you know, shut up and do, you know -- and part of the issue was is that we had safety problems on the site.

And I was in a management position, and I had an employee that came to me and said I don't feel safe here. The gate is very dark, I get here before sunrise or work after dark. We had, oftentimes we had homeless people. I found loaded weapons on the property one day that somebody had abandoned that were stolen loading weapons. And so as a manager I had some responsibility, because I worked at the site and, you mow, I bought some, bought a security light for the gate, upgraded the lighting around the parking area, talked to them about doing something about -- we had a

1 2 3 4 5 6 7 8 9

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them up behind the building, and it burned down.

Q. SO it burned down after you had moved to West Virginia?

A. Yes. Q. Okay.

MS. SANDERS: Okay. I don't have anything else right now. If you want to go

THE DEPONENT: And before he stops that, most of the things, most of what I recommended they have now done. Too little too late.

VIDEOGRAPHER: We're now going off the record, and the time is 2:57 p.m.

(Whereupon, Break.) VIDEOGRAPHER: We're back on the

record, and the time is 2:59 p.m. EXAMINATION

BY -MR.KONST ANTY: Q. Good afternoon, Mr. Halbum. How

are you? A. I'm hanging in there. It's a long

afternoon.

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Page 102 Page 104'1 ~

1 I iI ~

2 Q. I'm Paul Konstanty. We've met 2 that I wrote the article. i 3 before. 3 Q. Why wouldn't you put your name on ~ 4 A. Never been introduced, though. 4 it, then? That's the question. I don't ~ 5 Q. As you know, I represent Cleveland 5 understand that. ) 6 Construction. 6 A. Because I chose not to. ~ ~ 7 On your internet web site, it's 7 Q. I see. Because of the content of ~ 8 called PutnamLive.com; is that right? 8 the quotes? ~

~ 9 A. Correct. 9 A. Not necessarily but sometimes. ~ 10 Q. And are you the owner? 10 Q. Okay. ~ 11 A. Yes. 11 A. The commentary that you're holding in g 12 Q. Does PutnamLive.com or you, do you 12 your hand has my name on it. ~ 13 have employees? 13 Q. Yes, I understand this does, but ~ 14 A. I have people that freelance for me. 14 there are other articles you've written about ~ 15 I don't have any staff employees. 15 this proj ect, Cleveland Construction, the 1 117

6 Q. Who are those people? li~:068 wAa.I-Mvaertry-~ew. I'~' •. : .. " A. Lawrence J. Smith is, and he's the J.' ..

18 only one that contributes editorial content. Q. Let me just remind you to let me 19 I have a couple of high school kids that finish, because I don't want you to answer a 20 have done archiving where theYJ'ust cut and question that I'm not really asking you. So , 2 1 paste and did data entry and things like 2 1 to be fair to you, you should let me finish i 22' that. Lawrence is the only one that's done 22 before you answer, and it's also helpful for I 23 any, any editorial content. 23 Kathy. And it's also helpful for me because ~ 24 Q. Okay. So then in a situation where 24 now I've forgotten the question I was going ~

1_2 __ 5 ___ t~h~e~re~'s~a=n~art~1~'c~le~0~n~L~0~u=r~w~eb~s~it~e~in~w~h~ic~h~ ____ -+~2~5 __ ~to~a=s=k~y~(0~u~. __________________________ ---4~

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~ Page 103 Page 105 ~

1 you're quoted, would Mr. Smith be the author 2 A. This may be the first time that of that article? 3 Cleveland Construction has been fair to me.

A. Sometimes. 4 Q. There have been other articles that Q. If he's not, who is? 5 you've written about either Cleveland A. I would be. 6 Construction or Wal-Mart or this project that Q. SO you write the article and quote 7 don't appear in your blog, they're just out

yourself? 8 there on the web site in the news section; A. I write the editorials and quote 9 correct?

myself. I don't recall ever quoting myself lOA. Correct. in a news article. Lawrence has quoted me 11 Q. And from time to time you write

)1 1 ~ il ~ 1 ~ ~ ~ ~

I i

in a couple of articles as well as other 12 those articles but also from time to time ~ people. 13 you don't put your name on those articles? ~

Q. And -- 14 A. Very rarely. ~ A. I should say l\vrite most of the 15 Q. Okay. I noticed -- j

editorials myself. Some people do contribute 16 A. And I don't even know that there's ~ editorials. 1 7 more than one, but very rarely. ~

·i

Q. Is there a reason why it appears as 1 8 Q. Would you be surprised if there was .~

though someone else is writing those 19 more than one? ~ i{

articles? 20 A. No, but I don't keep a running :1 A. There are sometimes on occasion I've 2 1 count. ~

~ published something where I have not put my 22 Q. Incidentally, the blog that you have ~ name on the article because of the quotes 23 on your internet site, PutnamLive.com, you i that, of my quotes in it, and that would be 24 have used, have here Cleveland Construction's ~ the, you know, that would be the reason is 25 logo? ~

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Page 106

1 2 A. Correct. 3 Q. Did you ask them for permission to 4 use that logo on your web site? 5 A. No. There's something called fair 6 use doctrine that doesn't require you to get 7 permission to use a logo. 8 Q. Okay. Who is Carol Short Sudden 9 Link?

10 A. Carol is a --11 Q. Is that her name? 12 A. Her name is Carol Short. 13 Q. Okay. Sudden Link is where she 14 works? 15 A. Carol is -- well, where she worked 16 until probably a month or two ago. 17 Q. Okay. 18 A. She is a, she is a former 19 advertising rep for Sudden Link who has gone 20 to work for the local, what it's called this 21 month, CW station. Used to be the WB 22 station, but they've moved their office down 23 next to Kinko's and she's since gone to work 24 for them. 25 Q. And what if anything, does she have

Page 107

1 2 knowledge of of this issue with the Wal-Mart? 3 A. Carol has visited my home on several 4 occasions to pick up an advertising check. 5 I think once she dropped off diapers as a 6 baby present for when we had our child. At 7 one point she literally couldn't even drive 8 her car onto our property because the road 9 was blocked from construction work. And

10 she's seen and heard and experienced the 11 excessive noise, as have other people. 12 Q. And we've already talked about Mr. 13 Smith. He's your freelance contributor? 14 A. He is a freelance contributor. He 15 freelances for The Record and a number of 16 other papers. He doesn't work exclusively or 17 freelance exclusively for me. 18 Q. And David Bledsoe, is that a 19 Realtor? 20 A. David Bledsoe was the Realtor that 21 was dealing with the Bob Evans deal that I 22 referred to earlier. Thank you, I didn't 23 recall his name at the time. 24 Q. Ms. Sanders asked you a lot of 25 questions about your employment history. I

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Page 108

just want to be clear. Can you tell me when, from what month and what year you were in South Carolina?

A. July of2007 until late September of 2007. And then for a time I was here in the middle of that when our son was born and spent some time with my wife and son when, for the first couple of weeks of his life.

Q. That was some time during July to September?

A. Well, I came back here either on the, I believe it was August 27th when I returned. He was born on the 29th. She had some complications where she needed to have some home health care and needed to have a husband around to help take care of the baby while she was dealing with that, and, and I was here for probably a couple of weeks. It was going to be -- it was supposed to be just a matter of a week, but it ended up I think being an extra week or two. I don't recall exactly which, you know.

Q. But sometime in September of 2007

Page 109

you returned here to West Virginia permanently?

A. On the 21 st or 22nd of September, maybe the 23rd.

Q. Do you know when Cleveland Construction began its involvement in the Wal-Mart project?

A. I don't remember the exact date. I believe it was December of 2006. There was another company before Cleveland that had the first part of the project. I understand that they were fired after numerous environmental violations, and then your company came in later on.

Q. My client. It's not my company. A. Okay, your client. Fair enough. Q. You also mentioned earlier the

continued construction that goes on at the bottom of the hill near the Courts car dealership, KFC, the Taco Bell?

A. Correct. Q. That's where all that is going on.

Is it your testimony that you have not ever complained about the construction

11



Page 110

1 2 noise from those project. 3 A No, I have complained. I complained 4 about the constmction noise from the KFC. 5 Q. Not the bank? 6 A The bank is on the other side of 7 the hill, or other side of the street. For 8 about a week the bank was doing, about a 9 week or two, was breaking up a bunch of

10 rock, and I complained about that. Since 11 then it's never been a problem. 12 Q. And these complaints appeared in your 13 blog? 14 A I believe they did. And they're no 15 longer a problem. 16 Q. During the time when the blasting 17 was going on, was that before or after my .8 client was involved in the project?

19 A To my knowledge, it was after, only 20 after your client was involved with the 21 project. 22 Q. The blasting was finished when 23 Cleveland Constmction was on the proj ect? 24 A. No. The blasting started after 25

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Page 112 1 1 ~ ~ license.l

Q. And do you know who his employer i was? ~ A A subcontractor of Kanawha Stone. I ~

don't, off the top of my head I don't ~ remember the name. I

Q. Do you know why they're not part of ~ this lawsuit or that blaster? ~

I A No, I do not. ~ Q. Have you personally suffered any ~

physical injury as a result of the Wal-Mart ~ i~

project or anything that Cleveland i

Constmction has done? ~ A Physical injury, no. ~

t'l Q. During the time of blasting, and I i

{ heard you earlier, six months to maybe nine iJ

or a year; is that fair? ~ A I would say closer to nine, possibly ~

longer, but I don't know if it went on a i full year. ~

~ Q. During that time did you ever j personally perform any sound testing during ~

the blasting? I A No. ~

I------------~--~------~----------------_r----------------------------------------~t if Page 113 I.

Cleveland, to my knowledge after Cleveland

Page 111 ~

11' t1 2 Constmction started on the project is when 2 Q. Did you hire anybody to do that sort ~ 3 the blasting started. I don't have a 3 of work for you? I 4 contract to know what date your company or 4 A No. ~

u 5 your client started work on the project. I 5 Q. Have you ever obtained any sound ~

6 know in January of 2007 it was going on, and 6 level testing related to the blast? ~ 7 I received a tip about the blaster without a 7 A I have not. The state put a meter IJ II 8 license, and I was - and that blaster was 8 in front of Mr. Clay's home, some sort of ~

f 9 cited. And... 9 seismograph, and according to Sterling Lewis, ~

10 Q. Do you know the circumstances around 10 the fire marshal, they went right up to what K p 11 why that gentleman didn't have a license? 11 was legal and did not cross it, but he felt ~ 12 A He didn't renew his license. 12 that it was excessive for a neighborhood, but 1 13 Q: It wasn't the fact that he didn't 13 under state law he could not do anything. ~ 14 have a license, it was, it's like not 14 Q. Because the law hadn't been violated? ~ 15 renewing your driver's license? 15 A Because the law hadn't been violated, .:f

16 A But when you don't renew it, you 16 although he felt that the law had too much 1 17 don't have one. 17 room for high levels of blasting for whatt 18 Q. I understand. It wasn't for some 18 was, what was appropriate. ~ 19 improper purpose, he just failed to renew his 19 Q. That's his personal opinion, but the ~ 2 0 license, which you investigated; right? 2 0 point was -- I 2 1 A I was told that he -- that, that 21 A No, that's his professional opinion. ~ 22 was later dismissed without a hearing, which 22 Q. Excuse me. His professional opinion. ~ 23 showed great prejudice by the legal system. 23 Which that's what he told you? I 24 And I was told by Mark Sorsaia that he 24 A Right. ~ 25 blamed his employer for failing to renew his 25 Q. He said in my professional opinion ;

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Page 114 Page 116

1 these levels are too high? 2 had to take her mother and leave because we A. He may not have used that phrase, 3 couldn't breathe, but I'm not saying that

but I was speaking to him on a professional 4 they damaged the home. level. We weren't out having a beer or 5 Q. Yeah, I understand that. And I just anything, it was a professional conversation. 6 want to make sure that I'm clear that, for

Q. And did he say that the -- 7 instance, you don't know or you don't have A. He encouraged -- 8 any reason to know whether the foundation has Q. -- blasting levels were not exceeding 9 been disrupted as a result of this blasting?

the -- 10 A. No, there was a, there was a A. The state threshold. 11 Christmas omament that she had hanging on Q. That's what he told you? 12 the living room wall that a blast went off A. Well, I'm phrasing him, but, yes. 13 and the house shook and it fell down and got Q. Sure. Okay. Fair enough. 14 shattered. That, to my knowledge, is the A. He also encouraged me to contact the 15 only physical damage.

legislature to get them, get those levels 16 Q. Okay. reduced, which I did. 17 A. And it wasn't to the structure, it

Q. And you've been unsuccessful in 18 was to a Christmas omament. having any relief -- 19 Q. No windows were broken, no siding A. Correct. 20 fell off? Q. -- thus far? 21 A. None. A. Thus far. 22 Q. You've observed no cracks in your Q. Have you ever been asked to leave 23 foundation?

the govemor's office? 24 A. None. A. No. 25 Q. No roofing material has blown off?

Page 115 Page 117

1 Q. Have you ever been asked to leave 2 A. Not to my knowledge. I have never

Mark Sorsaia's office? 3 been on the roof, but I've never seen A. No. 4 anything on the ground from the roof. Q. Have you ever been escorted out of 5 Q. Your wife and her mother purchased

the Putnam County Courthouse? 6 the property sometime in the early nineties? A. No. 7 A. I believe it was 1992. I'm not Q. The four Realtors that you have been 8 sure. I did not know her then.

in contact with about your home, your wife's 9 Q. Okay. And you're aware that the home, has anyone ever made a physical 10 purchase price was $40,000 at that time? inspection of the house? 11 A. I've heard that number. I've never A. Yes. 12 seen the contract or looked at any of that. Q. Do you have any personal knowledge 13 I've heard that number. Again, it was

from any of those people or otherwise that 14 before I knew her. your wife's home has been damaged as a 15 Q. Have you ever, and including today, result of the blasting? 16 had any financing from the property, meaning A. No. 17 a mortgage that you're responsible for? Q. Do I understand correctly, then, that 18 A. There is nothing in my name. I pay

the dust and debris would be the only 19 a percentage of the mortgage. You know, our physical damage to the house? 20 income is pooled together. A. And the smoke. 21 Q. Sure. Q. Okay. 22 A. And it goes for the mortgage A. And I don't say that they damaged 23 payment, but nothing is in my name.

the house. Let me clarify. It's been a 24 Q. The deed for the house is not in major hassle, the smoke. We literally, I 25 your name and the mortgage is also not in

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Page 118

1 2 your name; is that fair? 3 A. Yes. 4 Q. In your opinion, has the value of 5 the house increased or decreased since the 6 Wal-Mart was constructed? 7 A. Decreased. 8 Q. What do you think the value of the 9 house is?

10 A. I've been told by the Realtors that 11 it's now valued at less than $100,000, and 12 that would be for a residential property for 13 someone to buy the home to live in the home. 14 Q. Sure. 15 A. We have been told that it's worth 16 anywhere between, you know, 300 and 400,000 17 as a commercial property; however, we've .8 never had an actual offer for commercial

19 property. 20 Q. And who, who's told you that? 21 A. Mike Hall, Dave Bledsoe. 22 Q. Okay. Can you, can you describe for 23 me, I have a difficult time understanding, 24 what would prevent someone buying it as a 25 residential property for $100 000 or less as

Page 119

1 2 you say, and turn it into a commercial piece 3 of property? 4 A. We're not going to sell a home for 5 less than $100,000]:01' someone to buy it to 6 tum it into a commercial property. That 7 would, that would prevent it. 8 Q. Because you won't sell? 9 A. We will sell. We're not going to

10 sell the home -- our mortgage, I believe, is 11 about 115,000. We're not going to sell a 12 home for less than what our mortgage is and 13 take a loss. And I don't believe and I 14 don't think there's anybody in this room that 15 would want to live across the street from a 16 Wal-Mart. 17 Q. Were you and your wife married when 18 this mortgage was taken out, 115 or so? 19 A. We've done some refinancing, and, 20 yes, we were married. 21 Q. Okay. And then --22 A. Or I should say they did the 23 refinancing. I'm not on the mortgage. 24 Q. Your wife's mother is still a part 25 of that?

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Page 120

A. Yes. Q. During that process of refinancing, I

assume that the bank sent out an appraiser? A. An appraiser came out. I don't

believe it was sent by the bank. Q. Okay. Would the bank have required

an appraisal for this financing? A. I believe. But, again, I wasn't

entirely a part of that process. Q. Even the new refinancing since you've

been married? A. Yeah. Nothing is in my name. Q. I understand it's not in your name.

Do you have any knowledge of it? A. I have some knowledge of it. I

remember taking some phone calls and referring the papers to her, and at one point I negotiated down the interest another quarter or a half point. We've actually refinanced it I believe it's been twice, or they refinanced it twice since we've been married.

One of the refinances was done was to remodel the kitchen, living room and

dining room. And at that time I heard

Page 121

rumors about a Wal-Mart coming in and I contacted the Putnam County Development Authority and was told, no, there's no Wal-Mart, nothing's been signed, nothing's been happening. We refinanced it. And I found out later when I did a FOIA request, after I realized I'd been lied to, that they had signed the contract prior to us refinancing. We would not have done that had we known a Wal-Mart was being built across the street. Gary Walt of the PCDA lied to us about that deal. Q. And--A. And I had to do a FOIA to get the

truth. Q. And can you tell me why the Putnam

County Development Authority is not also a part of this lawsuit if you have that complaint? A. I've been advised by the attorneys

that, to not sue them. Q. Okay.

MR. KONST ANTY: Let's go ahead and

31 (Pages 118 to 121) f011 b12a-1 cae·4351-a011·04e1 c42b5e3c


Page 122

1 2 change the tape. 3 VIDEOGRAPHER: This concludes tape 4 number 2 in the deposition of Mark Halburn, 5 and we're going off the record at 3:20 p.m. 6 (Whereupon, break.) 7 VIDEOGRAPHER: This begins tape 8 number 3 in the deposition of Mark Halburn, 9 and we're on the record at 3:27 p.m.

10 BY-MR.KONSTANTY: 11 Q. I heard your testimony earlier about, 12 Ms. Sanders asked you about your neighbors, 13 and you mentioned Mr. Clay and he had been 14 interviewed by the television, and you also 15 mentioned that he has a motorcycle that's 16 noisy and he lets it run. Did you ever ask 17 the City of Hurricane Police Department to .8 enforce the noise ordinance against Mr. Clay?

19 A. Yes. ; 20 Q. And what was their response? 21 A. They went out and told him to quiet 22 it down, and then later the noise ordinance 23 was thrown out of court. But they've been 24 out at least once, maybe twice and told him, 25 you know.

Page 123

1 2 Q. And you didn't sue Mr. Clay for 3 violating the noise ordinance, did you? 4 A. No, I did not. 5 Q. When you say the noise ordinance was 6 thrown out of court, I assume you're 7 referring to a hearing that we've had in 8 this case; is that right? 9 A. The hearing, I don't know if it was lOin regards to this case, it was a hearing on 11 the noise ordinance itself to -- it was a, I 12 believe you call it a writ of mandamus 13 hearing to enforcetlw city to enforce the 14 noise ordinance. And the judge, in my 15 opinion, made a mistake and ruled that it 16 was unconstitutional. 1 7 Q. You heard Judge Chafin say that the 18 ordinance was unconstitutional? 19 A. Correct. 20 Q. And that's the judge you're referring 21 to? 22 A. Correct. 23 Q. How many times over the course of 24 this construction project did you call 25 Cleveland Construction?

Page 124

1 2 A. Oh, at least several, possibly 10 or 3 more. I don't recall specifically. And 4 they were rather rude and refused to do 5 anything. And, again, the complaint was not 6 about the construction, it was about the 7 excessive noise and the blasting and the one 8 day about the blaster not being licensed 9 after I received a tip that he did not have lOa license, which he did not at that time. 11 Q. It's possible that you called 12 Cleveland Construction on more than 10 13 occasions? 14 A. Possible. 15 Q. Possible that you called them on 10 16 occasions in just one day? 1 7 A. No, I don't believe so. 1 8 Q. How many times do you think you 19 would have called their construction trailer 20 or their corporate office in one day? 21 A. I believe I called their corporate 22 office three or four times in one day. To 23 my knowledge, I never called their trailer. 24 They had an office that was in the 25 Consolidated Freightways building, and I

Page 125

1 2 called it. To my knowledge I never placed, 3 I don't know where their phones were, but to 4 my knowledge the trailer was put up long 5 after all of the, long after the false 6 arrest. I called them far fewer times than 7 they disrupted our home. 8 Q. Tell me specifically what Cleveland 9 Construction did to contribute to your

1 0 complaints here. 11 A. Made or allowed their subcontractors 12 to make excessive noise, blasting, burning. 13 On a regular and consistent basis they 14 basically said, you know, Hey, we're going to 15 build this and we don't care what you guys 16 are dealing with, and, you know, we're just 1 7 going to go forward with the project. 18 And instead of putting up a berm or 19 putting up a sound wall or putting up trees 20 or any or all of the above and trying to 21 cooperate with us and, or work out a 22 schedule so that they can make as much noise 23 as they want to when Dolores and I were at 24 work, they basically took the attitude of 25 we're going to do this and the city is



Page 126

1 2 letting us get away with it and so, you 3 know, we're going to do it. 4 Q. Is it your opinion that Cleveland 5 Construction had authority to direct the 6 blasting schedule as opposed to --7 A. Yes. 8 Q. -- Kanawha Stone or someone else? 9 A. Yes. I was told by Mr. King at

10 Kanawha Stone that the blasting schedule was 11 set by Cleveland Construction. And I was 12 told by Mr. Stone, after he committed to me 13 that he would provide it to me, that 14 Cleveland Construction directed him not to 15 provide the blasting schedule to me or anyone 16 else. 17 Q. And in response to that did you call .8 Cleveland Construction?

19 A. I called them and asked them for a 20 copy of the blasting schedule. 21 Q. And what did they say? 22 A. They refused to do it. 23 Q. Who did you talk to at Cleveland 24 Construction on that specific occasion? 25 A. I don't recall.

Page 127

1 2 Q. Was it somebody in the local field 3 office or somebody at corporate? 4 A. It was somebbdy, to my recollection, 5 in the local field office. 6 Q. Was it Mr. Koon? 7 A. I don't know. I don't recall who 8 it was. I called, I spoke to Mr. Koon 9 about the blaster not being licensed. He

10 hung up the telephone. I called him back, I 11 said, Look, I really want to get your side 12 of the story. He hung up again. The next 13 time I saw or had anything to do with Mr. 14 Koon was when we were in court the day that 15 he lied on the witness stand and lost the 16 case. 17 Q. The complaints that you have with 18 the Wal-Mart now, the traffic, the street 19 sweeper --20 A. The noise. 21 Q. -- the delivery trucks, the noise, 22 the lights, agree with me Cleveland 23 Construction doesn't have anything to do with 24 that? 25 A. No, I don't. Those things wouldn't

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be happening had Cleveland Construction not built the facility.

Q. And if Cleveland Construction hadn't built the facility, do you agree somebody else would have? A. Not necessarily. According to

Cleveland Construction's web site they're a huge builder for Wal-Mart. And the other company that they hired originally didn't build the facility. That's an assumption that you're making.

Q. That I'm making? A. Right. That, that, you know, had

they not done it somebody else would have. I don't know how many construction companies there are that are out there that are qualified to build a 185,000 square foot Godzilla in a neighborhood.

Q. Is, in your opinion, Cleveland Construction qualified to do that? A. Yes. Q. Did Cleveland Construction have any

role in disrupting your postal service? A. To my knowledge they were involved

Page 129

with the work down at the bottom of the hill for either sewer and/or electrical lines that blocked our mailboxes on several occasions. I know at one point when I came down the hill and turned the comer to go to work I almost came, I almost collided, what do you call it, nose first, head-on collision rather with a tractor that was going the wrong way on the street that was being supervised by Mr. Day, who I later saw or had seen testify in court was being driven by an employee that I assume worked for him that -- so they were doing quite a bit of work down there and disrupted our mail on several occasions.

Q. Did Cleveland Construction have any involvement in the disruption of your electricity or telephone service? A. I don't know who was specifically

involved with that. Q. You have had, I won't call it a

lawsuit, but you've had a disagreement with the Putnam Sewer District and AEP over interruptions to your service; correct? A. AEP, interruptions to our service,



Page 130 Page 132 Q :~

1 1 1

I 2 there was no interruptions to our sewer 2 has not met the state requirements to provide ij

3 service, but the strip of grass in front of 3 infolIDation, and they're still trying to get ; 4 our home was tom up. We received a letter 4 AEP to comply with the law and cooperate, ~ 5 from PPSD saying that we would not have any 5 according to what their attorney told me. ~ 6 disruptions or very little impact or 6 Q. Whose attorney? ~

~ 9

7 whatever. Dolores came home one day, 7 A. The Public Service Commission, John '. 1 ~1

8 couldn't get to our home. 8 Abba. ~ R 9 They tore up the grass in front of 9 Q. Are you represented in that matter v

10 our home which still has not grown back 10 by an attorney? ~ ~

11 properly even though they made, you know, 11 A. No. There was a couple of times ~ "

12 made another repair to it. They, they seem 12 where our electricity had to be -- it was j ~ "

13 to think that throwing down seed and straw shut off while they ran power lines across 13 " ~ 14 and making people wait eight months for grass 14 the freeway to provide more power for the , ~

15 to grow back is acceptable. I disagree with 15 Wal-Mart before it was built. I don't know ~ 16 that. They tore out the grass, they should 16 if Cleveland Construction or if that was t

~ 17 bring in live grass 'and replace it and make 17 Hudson that was involved with that, but there ~

,~ _ 8 people whole as quickly as possible, not make 18 were some, at least two direct outages in ~ 19 them sit and wait. 19 relationship to the Wal-Mart construction. I 20 The Public Service Commission is 20 And they literally had to stop traffic on 21 determined that AEP Services, for lack of a 21 Interstate 64 to do it multiple times. I 22 better term, deficient as far as reliability, 22 Q. How long were those outages? ~

23 and since then there's been three major power 23 A. Several hours, to my recollection. i 24 outages since that detelIDination was made. 24 Q. And at what time of day? ~ 25 And they tore up property on our hill and 25 A. Afternoon.

(l;

~

Page 131 Page 133 ; !

1 1 I,~ , !

2 back, and the sewer construction people that 2 Q. Were you at home? ~ ~ 3 worked with the sewer district tour up the 3 A. Some of the time I think. If! '1

~ 4 property in front. And we're getting, you 4 recall correctly, we left, went shopping or 1 5 know, our property gets damaged in two 5 to dinner or something to -- not a lot you 1 6 different directions and nobody seems to 6 can do without power in your house. ;'1

~ 7 care. It's like, Well, we've got to have a 7 This Wal-Mart construction has been a ~

8 Wal-Mart. 8 pain in the neck for, you know, a couple of ~ ~ 9 Q. Did Cleveland Construction have any 9 years, and it went over schedule. We were 11

10 involvement to the damage to your lawn that 10 promised it would be done months before it I 11 you just described? 11 was done. i 12 A. Not to my knowledge. That was done 12 Q. Earlier I was asking you about the ~ 13 by Range & Son arid BBL Carlton and was in 13 value of the property, and I think we got ~ 14 connection with the Hurricane Marketplace up 14 off track a little bit. I recall asking you ~

~ 15 the hill. 15 whether in your opinion the value of the i 16 Q. And you -- have you been before DEP 16 properties increased or decreased since the ij

~ , 17 or another administrative agency with respect 17 Wal-Mart was constructed. And if I recall i 18 to power outages and AEP's service? 18 correctly, you said that it has decreased? '§

19 A. I have filed a complaint with the 19 A. I'm told that the value as a ~

20 Public Service Commission. 20 residence has decreased. i 21 Q. And has there been a hearing? 21 Q. At some point, and we were getting ~

22 A. Not yet. Scheduled for October, I 22 to -- this was the line of questioning that

" 23 believe, if it gets to that point. 23 we were on, it may have been when we changed 24 Q. Why-- 24 tapes, I had asked about appraisals and you 25 A. The last time I spoke to them, AEP 25 told me that you weren't involved with that .~.~ . ·':;:t:'''',;:'';<Oi~~llf'>" •• :',: .,,: ~""'·"""'l<~"""'~'iI'»'t:::t'.wol:.WW,~~" !;.....,.N<,;<.,_"~~.v ... "'.:.,.\,'\r>.-, ..... n,~~ .... ,,fti.:t~~')""'j,}'._ ... L'~'«:,: 1i,(~·f"~I.."':'("·,"'·H~"'~ V'''''''.''''''·n:", .. Y~'H1'r't.~''· ~ •. ~ ~ft',:l>l~W$.H}ili..:\;'!~:OO· ...,. W~ ...... ~;~~,o;;I; ... ~<'lh,\"''''>\'IV. ""'?f~~YIi



Page 134

1 2 process, fielded a couple of calls? 3 A. I think I met the appraiser once, 4 and that was -- I didn't call him, I didn't 5 --6 Q. Do you have --7 A. -- alTange for it. 8 Q. I'm sony, I didn't mean to 9 interrupt you.

10 A. I didn't, I didn't alTange for it. 11 I think I, the day he was there, you know 12 -- we, to my knowledge, she and her mother 13 refinanced it twice since I've been there, 14 and I met him on I believe the second 15 appraisal. 16 Q. The most recent? 17 A. Right. ~8 Q. And how close in time was that to 19 when the construction of the Wal-Mart began? 20 A. Shortly before. Again, had, had we 21 known that -- well, no, let me rephrase 22 that. Shortly before the, that we discovered 23 that there was an option to buy, to do the 24 Wal-Mart, the construction statied probably 25

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Page 136 ~

A. No. But, again, had we been, had the PCDA been truthful to us about the option to buy with the Wal-Mart and had, you know, infonned the public that they were selling public land as they should have done, we would not have done that or they would not have done that second refinance and we would not have put that money into the home, you know, because the resale value has gone down so much it's not worth investing in.

Q. Sure. And so given your testimony there with respect to the value and refinancing the house and the work you've done with it, would you agree with me that that complaint is better directed at the Putnam County Development Agency?

A. Yes.

~~ ~ y ~~ ~ ~

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I Q. As opposed to my client or anyone ~ else in this room? M

A. Yes. I Q. Did you have knowledge of the value ~

that the appraiser assigned to your home? ~

about a year later, but the option to buyI 25 A. I think she told me at one point or jl.'.~,::'

another what value was assigned, and it was ~ I----~~~~~~~~~~~~~~~~------~~--~~~~~~~~~~~~~~~~'~--~~

Page 137 i Page 135

1 1 . , 2 believe was November 18th of2005 or 2006, I 2 3 don't remember, and we were involved with 3 4 remodeling the kitchen and that sort of 4 5 thing. I do recall, for example, we had a 5 6 pipe break. We had a pipe that always 6 7 froze, and when we did the kitchen remodel 7 8 we moved it with the idea that it wouldn't 8 9 freeze and ended up instead of just freezing 9

10 and being an irritant, ended up freezing and 10 11 breaking. And that year at Christmastime we 11 12 had to -- I mean, I literally was spending 12 13 part of the week in a Holiday Express, she 13 14 was living at her mom's in Charleston because 14 15 we had to re-gut the kitchen and redo 15 16 everything because of all the water damage. 16 17 And so I believe that was, you know, shortly 17 18 after November when the deal was signed. 18 19 I'd have to go back and look at exact dates. 19 20 Q. This water datnage and the pipe 20 21 freezing and breaking is not in any way 21 22 related to Wal-Mart, is it? 22

~ well over $100,000. I don't remember the I specific number. ~

Q. Was it less than $150,000? :~l A. I don't -- for some reason 175 g

sticks in my mind, but I don't recall lj ~

specifically. ~ \.

Q. How much land do you know goes with ~

the house? l A. The property that they own is .61 ~

acres. There is a strip of property on the ~ ~ east side of the, well, I don't want to call ~

it acreage, it's less than an acre, that ~ appears to be ours but actually, and we mow ] it and maintain it, that actually belongs to t the construction yard next door. Their fence 'I

~ comes about a foot or two short of their ! ~

property line. ~ Q. Incidentally, what's the name of that ~.:

construction yard next door? ~ A. I think it's Kanawha Valley ~

Construction, I believe. a 23 A. No,no. 23 24 Q. Nothing related to Cleveland 24 25 Construction? 25

Q. Have you ever asked the City of ~ Hurricane to enforce the noise ordinance I against that company? ~

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35 (Pages 134 to 137) f011 b12a-1cae-4351-a011-04e1c42b5e3c


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Page 138 Page

1 AYes. 2 have, I would have liked to have done that, Q. And what was their response? 3 but we never knew what time the blasts were A Well, as I said earlier in the 4 coming, so I don't, to my knowledge, have

testimony, Wingo cited them and Chief Baker 5 any tape of the blasting. Sorry. -- well, there's been several times that 6 Q. Did any of the blasting occur during we've asked. In the early years they 7 the evening at night when it was dark? ignored it and didn't do anything about it. 8 A. Evening hours, I don't recall if it And there was actually a letter that I wrote 9 was after dark. Again, because I normally to the Hurricane Breeze, and former 10 worked a swing shift I was usually not home Councilman Boyles, pardon me, was councilman 11 in the evening. Dolores could answer that at the time and responded to that letter, 12 question better.

l and, you know, and it was talking about the 13 Q. Okay. ~ de1apidated property as well, and there were 14 A. Because she usually worked a 9 to 5 ! a couple letters written back and forth. 15 and was home in the evening. ~ But eventually Hurricane rewrote, for lack of 16 Q. To your knowledge and recollection, ~ a better term, their noise ordinance and put 1 7 was any blasting, did it ever occur before i actual decibel levels in it. At that point 18 8:00 in the morning? .~ I called out and Wingo cited them, Baker 19 A. You would have to look at the notes ~

~ threw it out. 2 0 on the blog. I don't recall the morning ~ And then as they were testing their 2 1 times. R

noise ordinance they discovered that just a 22 Q. Whatever's in your blog, then, l vehicle going down the street in front of 23 that's, you stick by that? ~ city hall technically violated it, so they 24 A. Yes. I

r2 __ 5 ___ w~e_n~t~b_a~c_k_a~n~d~plu~1l~ed~0~u~t~th~e~n~0~i~se~0~r~d~in~a~n~c~e ____ ~2~5 __ ~Q~ .. ~O~k~a~w~ .. ________________________ ----~I ~

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Page 139 Page 141 ~

and went back to the one that you and I ; A. I don't think there's a good time to i dealt with that was eventually ruled 3 blast a neighborhood house whether it's in ~ unconstitutional. Why Baker pulled it, I 4 the day or night or, you know. People are I don't know. Wingo said that he just didn't 5 entitled to peace and quiet in their home no ~ want to do anything against a business, but 6 matter what time of day it is and in their it I've never had a chance to ask -- I didn't 7 yard. I find out until after the chief left that he 8 Q. Is there still a hammock in your t did that, and haven't had a chance to talk 9 yard? ~

to him about it. He's in Florida I believe 11

01

A. Y es. ~ now. Q. When's the last time you used it? ~

Pardon me. 12 A. Myself, I don't recall. It tended I 13 Q. Do you have any videotape or any 13 to be used more by Dolores, and she has i 14 recording of any blasting? 14 nieces and nephews in. Probably a year ago ~ 15 16 17 18 19 20

A. No, not to my knowledge. 15 was the last time that I used it. ~ ~ Q. And we've been provided in discovery 16 I -- it's hard to enjoy your yard "~

in this litigation with -- 1 7 when you've got all the construction and the i ~ A. Let me, let me finish the answer to 18 Wal-Mart and the traffic and everything i

that question, if you don't mind. 19 across the street. I rarely, other than to ~ Because of -- 20 take the trash to the curb, or, you know, to ~

li 2 1 Q. I'm sorry. I thought you were done. 21 work out in the yard, which I don't do that, ~ 22 A. No. And I wanted to add to that, 22 we hire kids now to mow our lawn, when we I 23 if you don't mind. Because we were never 23 had a riding mower I did it, but I don't I 2 4 giv~n a blasting schedule, I h~d no way of 24 want to deal ,:,ith a push mower, and so I i 25 settmg up a camera to record 1t. I would 25 rarely go out m the yard anymore. It's not ~

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36 (Pages 138 to 141) f011 b12a-1 cae-4351·a011·04e1 c42b5e3c


1 1

Page 142 Page 144,

~ 2 enjoyable. Let the dogs out, let the dogs 2 car and your video camera and asked the 3 back in. 3 gentleman who he was and who he worked for. 4 We've got a beautiful home, and a 4 Do you recall that? 5 yard and a home that we -- we can't enjoy 5 A. Yes. When I called in the complaint 6 the yard anymore. All of that, the 6 to Putnam 911, they invited me to meet 7 construction and now the Wal-Mart has ruined 7 Sergeant Moore. I think he was sergeant. 8 our peace and quiet and the life that we, 8 He got promoted, I don't remember the time 9 you know, that we had and we enjoyed. Those 9 line exactly. Jason Moore of the Hurricane

10 people involved with it should be ashamed of 10 Police. And they said, you know, he would 11 themselves. 11 like to meet you out there, go ahead and go 12 Q. Do your neighbors use their lawns? 12 out there. And it was 4:23 in the morning. 13 A. My neighbor, Mr. Clay, has a front 13 I remember that very well. Not a time to ~ 14 lawn that for lack of a better telID can best 14 disrupt your neighbor to pick up construction \1

15 be described as a postage stamp. 15 equipment on Thanksgiving morning. Completely ; 16 Q. I didn't ask you -- 16 inappropriate. I ~ 17 A. And so -- 17 Q. In your opinion, does the videotape ~ .8 Q. Mr. Halburn, I appreciate that. I 18 accurately depict the noise that was going on ~

19 just don't want to belabor this point. 19 at that time? ~ 2 0 A. Okay. 2 0 A. Some of it. I didn't roll tape ~ 21 Q. But I asked you ifhe uses his 21 through the entire incident. I 22 lawn, I didn't ask you to describe it. 22 Q. You I believe started in the house. 1i

23 A. Rarely. Rarely does he use his 23 You showed the clock either on your stove or &

24 lawn. 24 microwave. Do you recall that? I _2 __ 5 ____ ~Q~: __ An __ d_d_i_d_h_e_e_v_e_r_u_se~it_b_e_fo~r_e_t_h_e ________ ~~2-5-----A-.--C-o~rr~e~c~t~.---------------------------I~

Page 143 Page 145 :J

1 1 2 Wal-Mart? 2 3 A. Rarely. 3 4 Q. Okay. 4 5 A. There's not much lawn to use. 5 6 Q. Any of the other neighbors, have 6 7 they decreased the use of their outdoor 7 8 property? 8 9 A. I don't mow. The other neighbors 9

10 are on the other side of John's home, and I 10 11 don't pay attention to what they do. The 11 12 Clays had a yard sale there the other day, 12 13 but... 13 14 Q. Was that a nuisance? 14 15 A. The yard sale? No, it was quiet. 15 16 Q. The videotape that we were provided 16 17 in this case, one of the videos, as I 17 18 recall, is family gathering I think at 18 19 Thanksgiving and it's various recording 19 20 throughout the day. There was I believe 20 21 earlier that morning at maybe 2 or 3 in the 21 22 morning a worker that was picking up some 22 23 equipment. Do you recall that? 23 24 A. Yes, very vividly. 24

Q. And is it your testimony that you could hear noise from inside your house? A. Yes. That's what woke me up at

4:23 in the morning was the -- the piece of equipment had a, for lack of a better term, a reverse alarm or beep that I guess is required by OSHA, that he was backing it up across the parking lot, and it woke me up at 4:23 in the morning, otherwise I would have been asleep ..

Q. And did you ever discover who that person worked for?

A. No. The police department refused to disclose that to me. I did get a recording of his license plate number.

Q. And what have you done with that? A. Kept it on the tape. Q. Have you made any effort to discover

that man's identity? A. I asked the police department to

provide it, and they said that he gave Jason Moore a business card, Mr. Moore refused to give it to me. And then later when I went

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Page 146

1 2 away. I don't believe that he did, but 3 that's what I was told by Chief Mullins. 4 Q. Can you tell me why the Hurricane 5 Police are not a part of this lawsuit? 6 A. Because my attorneys have advised me 7 that not to file a suit against them. 8 Q. And I assume that's true with 9 respect to the malicious prosecution lawsuit

10 that's recently been dismissed? 11 A. Yes, although that will probably be 12 appealed. I'd certainly like for it to be 13 appealed. 14 Q. As a result of that dismissal of 15 that malicious prosection case, did you refer 16 to either Judge Chafin or myself as a 17 communist? .8 A. I don't recall.

19 Q. Do you recall whether you suggested 20 that I should lose my law license? 21 A. I recall suggesting that anybody that 22 argued against the First Amendment of the 23 Constitution should lose their license. And 24 that was a First Amendment issue that got 25 distorted in the in the case.

Page 147

1 2 Q. Are you suggesting that I lied to 3 the court? 4 A. I don't have to suggest it. 5 Q. Oh, I did, is that what you're 6 saying? 7 A. Yeah. It was a First Amendment 8 issue, and you went. in there and argued 9 about other things: First Amendment gives

10 the press freedom of the press, and I was 11 doing an investigative story about somebody 12 that did not have a license, and your client 13 had me arrested; and indeed he did not have 14 a license, and that was established and he 15 was cited for that. 16 Q. As a result of the construction of 17 the Wal-Mart, was your service, your water 18 service ever disrupted? 19 A. Yes. 20 Q. Was it ever discolored? 21 A. It was not discolored. Many, on 22 many occasions we had low water pressure, 23 because a tanker that had Kanawha Stone's 24 label on it that was, or name or sign on 25 the side, however you want to describe it,

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Page

was consistently filling up at the bottom of the hill, and as a result the water pressure was reduced on more than one occasion, on at least one occasion. I believe more than one occasion the water was actually cut off.

The city eventually had to move the water tap to the other side of Hurricane Creek Road because of my complaints as well as those of Sally MacDonald about the reduced pressure. And at one point the city actually had a -- and this water tanker was spraying to keep the dust level down. At one point the city actually had a water shortage and was having to purchase water from someone else and even raised the water rates to pay for that while water was being, instead of being used for human consumption was being sprayed on the Wal-Mart property. Instead of being trucked in from somewhere else they were wasting the water in Hurricane and contributed to water shortage.

Q. And did the driver of that water truck threaten you with a--A. Yes.

Page

Q. -- with a wrench? A. Yes. Q. And do you know that man's identity? A. I do not. Q. Did you ask for him to be arrested? A. Yes. Q. And what was the result? A. They did not arrest him because they

told me that I did not have video of it, I only had still pictures of it. He should have been arrested.

Q. As a result of the construction of the Wal-Mart, have you sustained any damage to walls in your house? We talked about the foundation before. Have you lost sheetrock, have screws started to come out of the sheetrock, separate from seams, anything like that?

A. No. Q. I want to give you an opportunity to

tell me, aside from the things that we've already talked about here today, the damages that you have sustained, you and your wife have sustained as a result of my client's



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Page 150

activities. A. Excessive noise, dust, dirt, smoke,

destruction of peace and quiet in our home and in our yard. When my wife bought the home and I eventually moved into it, it was a very quiet neighborhood. Even though the interstate is probably a quarter of a mile away, we rarely heard the interstate. I mean, there was -- sometimes you would hear a hom on the interstate or something like that, but it was as if it wasn't there, even though we're probably 90 seconds to the interstate from our, you know, from the front of our lawn.

It was, it was a place you would come at the end of the day or from work or wherever you were and you would come home and it was quiet and peaceful, and, you know, it was a pleasant place to be. You could hang out in the front yard, sit in the

. hammock if you want, or, you know, play with one of the nieces or nephews on the swing. And now it's, you know, it's like having Godzilla stomp on your neighborhood. The

Page 151

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

son. You know, he went back to sleep, but eventually we -- but, I mean, you can't enjoy it anymore. And I don't know how many times 12: 15 in the morning the street sweeper. There's no reason to sweep the parking lot ofWal-Mart, you know, at 12:15 in the morning. That could be done at 8:00 at night before people go to sleep.

You mentioned the construction worker on Thanksgiving morning. The day before that the city street sweeper was out at a few minutes before 5 in the morning. And -- I bless you -- and disrupting us. i

Q. Incidentally -- ~ A. And Wal-Mart refuses to cooperate. i

You know, we've asked them run, I've asked ~ ~ them run the street sweeper at 8:00 at ~

night, you know, when we're still awake. ~ Q. You agree that my client doesn't Z

have any control over that? I A. No, but had your client not done ~

what they did, the Wal-Mart wouldn't be ~ there. ~

Q. And that's really the complaint that i Page 153 i

~ 1 ~

noise is terrible. 2 you have is the fact that there's a Wal-Mart ~ Our Easter egg hunt on Easter of 3 across the street from your house now? ~

this year, a couple of times a car alarm 4 A. No. The complaint that I have is i, went off. Little kids are like Uncle Mark 5 the excessive noise and the excessive ~ or Daddy, or whoever they're talking, you 6 traffic. I was up in Barboursville the j

know, what is that or why is that going off. 7 other night and I've talked to the state of i You know, you can't enjoy the home 8 West Virginia about there used to be on that ~

that you're paying a mortgage on and that, 9 property before the Wal-Mart was built, there i 1 0 you know, was purchased to have a nice, 10 was traffic access on the other side of the ~ 11 quiet place for a family. We have a 11 property, and that access was taken away ~ 12 13

10-month-old baby now that we've been blessed 12 during the construction at the direction of ~ with, we love him dearly, but to take him 13 the DOT, and they made the comment to me, I ~

14 out in the front yard, there's no, there's 14 think it was Mr. Kramer, well, you know, why I 15 no enjoyment anymore, there's no pleasure 15 are you special, we put a lot of traffic in ij 16 anymore in enjoying the front yard of our 16 front of homes in Barboursville and they're l 1 7 home. 1 7 not calling us and complaining. So I went ~

1 8 And even the side yard, which is 18 up there the other night and actually looked ~ 19 over near the construction company, you know, 19 at it in anticipation of this meeting, and ~ 20 the noise level is so bad that you get out 20 all of the traffic there ends before it gets ~

of your car when you come home, open the 21 to those homes, and there's a berm on one , 21 22 23

door, and the first thing you hear is 22 side of the street next to the first home ! .. traffic noise from the Wal-Mart. Trucks 23 and there's a berm on the Wal-Mart side. We ~ I 24 delivering at 4 or 5 in the morning. You 24 don't have that. There's nothing protecting ~

25 know, 5:00 this morning a truck woke up our 25 us from that traffic noise. ~ \<a'.;.!:~ .. '\a.MU",l'>.1A !M'o ".- .: •• ~ • ":;l<ci,C<-~<l'~>!4 .. ;=~iY~I",,~.~.={I_h·"" '~~';;;:;;;";':'':~\.(\';:'''''');'-:;;~'l ';;.l ... :t~;~~;"-"~'>.~"""=.~).";<"':J:,,:.,': 'V-'''i'''''~<''~~~'~"","'l.·.·.~",~_~~ ~ ,...x.~ ~,,»,,,,,,;~,"'" a.~ll' -> ._." ·"""""'~j>;."A'<""""""'W'!'_~'~"'~M~~~!it



Page 154 Page 156 i 1 1 i1

2 Q. Is there something that can be done, 2 but recently you posted on your web site I 3 in your opinion, to reduce the noise problem 3 that you attended a meeting ofthe PCDA and ~ 45 that you have? 4 when you broached the subject they all just ~

A. Absolutely. 5 got up and left. ~ 6 Q. What is it? 6 A. Correct. ~ 7 A. They could -- on the land strip 7 Q. Is that accurate? ~ 8 between our home and the Wal-Mart they could 8 A. Yes. This is an agency that says ~

~ 9 put up, they could extend the wall higher 9 they want to develop that hill and want 11

10 and they could put up trees to do that. 10 jobs, but when they have the opportunity to ~ 11 They can go ahead and the road that runs 11 talk about it they get up and leave. ~ 12 parallel to our road that goes up in front 12 Q. Do you know why they have that ~ 13 of our home, overnight they could shut that 13 reaction to you? ~ 14 portion of the road down. There's many 14 A. Because they don't want to purchase ~ 15 places where you can't make a right-hand tum 15 our property. Because they say one thing to, ~ 16 during certain hours or you have to go a 16 the public and when it comes to the ~ 17 certain speed during school hours or 1 7 opportunity for them to create jobs and 1

~t 18 whatever. As you go up the road, you've 18 develop the hill and the things that Gary ~ 19 been to the property, I'm assuming, you can 19 Walton has said in the press, along with ~ 20 make, and they send the trucks to the left, 2 0 admitting to the Daily Mail that he lied to ,~ 21 you could, they could restrict access to that 21 me about the option to buy when I asked him ~ 22 road overnight. During the day there is the 22 when we discovered it several years ago. I 23 Hurricane Marketplace at the end of the road, 23 They turn their back on us. We've invited ~ 24 and I can understand why they want to have 2245 them to meet at our home with our neighbors. I 2 5 that road open during the day. But they At one point we had our neighbors come and 'I I-------------k------~ __ ~~ ____ ~ ________ ~------~=-~~~--------~--------~----~.~

Page 155

1 1 2 could shut down that road to traffic at 2 3 night and divert it to the other area of the 3 4 Wal-Mart property so it's not close to our 4 5 home. They could aim the lights better or 5 6 shield the lights better so that it's not 6 7 near our home. They could put trees on the 7 8 front of our property, you know, on our, you 8 9 know, on our lawn to, you know, to block 9

10 some of the light and some of the noise. 10 11 You know, I mean, I've even had women 11 12 screaming at I'm assuming their husbands or 12 13 boyfriends at 12:00 at night. You're sitting 13 14 in your house and you hear a woman screaming 14 15 at somebody from the Wal-Mart parking lot. 15 16 Nobody wants to live like that, except them 16 17 or her. I'm not sure he did. 17 18 Q. Recently you've tried to have the 18 19 PCDA buy your wife's house; right? 19 20 A. That's partly true. We've asked the 20 21 PCDA to buy our property before the Wal-Mart 21 22 was even put in. 22 23 Q. Okay. 23 24 A. So it's not just recently. 24 25 Q. Well, I don't want to be untruthful, 25

Page 157 i ~ nobody showed up. They have basically said,

you know, Hey, you're on your own and you're not going to help us.

Not only is it the issue of them not willing to purchase our neighborhood, and not just our property but the neighbor's, but the PCDA has a web site that has properties listed for sale that they're trying to promote the development of, and you would think an agency that is publicly saying we want to develop this hill and create jobs here would have all of the neighbors' properties posted. And we have asked them to do that, and they have never put it on their web site.

Q. And other than being the construction company that built the Wal-Mart, Cleveland Construction doesn't have any control over the PCDA; correct? A. To my knowledge, correct. I don't

think any members of Cleveland Construction live in Putnam County and vote or have anything to ...

Q. Aside from what we've talked about

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Page 158

1 1 2 already here today; do you have other 2 3 complaints about Cleveland Construction that I 3 4 should know about? 4 5 A. They could have worked with us about 5 6 schedule, they could have put up a sound 6 7 wall across the construction, around the 7 8 construction site or at least around the part 8 9 of the construction site that adjoins 9

10 neighbor, you know, people's homes. I don't 10 11 think there was a need for one on the 11 12 Orchard Park side or the Courts Motor side. 12 13 They, you know, they could have come to us 13 14 and said, Look, we're going to build this 14 15 thing, what can we do to make it easier for 15 16 all of you. 16 17 At several point, or one point I 17 18 even provided them with Dolores and I's work 18 19 schedule and said, Hey, this is when we're 19 20 gone, you know, do whatever you got to do, 20 21 but when we're home please, you know, give 21 , 22 us a break, and they refused to do that. 22 23 That was also provided to Ben Newhouse at 23 24 the City of Hurricane. 24 25 Their attitude through the whole 25

Page 159

1 1 2 thing was, Hey, we're going to do what we're 2 3 going to do, and if you don't like it, you 3 4 lmow, tough. 4 5 Q. And do you think that your attitude 5 6 was fair to them? 6 7 A. Yes. 7 8 Q. Making multiple phone calls on the 8 9 same day, that's a fair attitude to take? 9

10 A. It is when the noise and the problem 10 11 continues. Ifthey had solved it the first 11 12 time, there wouldn't have had to be multiple 12 13 phone calls. There wouldn't have been 13 14 multiple complaints. 14 15 For some reason Cleveland Construction 15 16 felt like, well, you know, we're going to 16 17 earn a living and we don't care what it does 17 18 to you, and, you know, you've got to put up 18 19 with it. And I don't know of any other 19 20 industry that acts like the construction 20 21 industry. 21 22 Q. I asked you earlier if you sutIered 22 23 any physical injury as a result of this 23 24 construction, but to be clear, have you 24 25 sought any medical care of any kind as a 25

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Page 160 ~

~ ~

result of this Wal-Mart being constructed? I A. My blood pressure has gone up and I ~

have been prescribed blood pressure ~ medication, and I believe that it's connected ~

to that. I Q. In your opinion, your high blood ~ pressure is related to the construction of ~ the Wal-Mart? Ii

'r: j

A. Correct. 6 • Q. And did your doctor tell you that?

1 § fu

A. He said I needed to cut down on the fi stress, and he recommended that I move away I from there. !

Did he make any other recommendations .::\

Q. ~ ~

for you? ~ ~

A. He prescribed the blood pressure i medication. I

Q. Just solely because of the stress? i A. Correct. ~ Q. The arrest that you talked to Ms. I

Sanders about earlier, that was in '90 in ~ California? A. 1989. I Q. Was the plea in'90? I

"

Page 161 ~ t~ I) , .

A. The plea was in '90. ~ '1

" Q. And that was -- !l

A. Well, the plea agreement was in '90, i~ :I

the not guilty plea was 1989. ~ ¥. .,

Q. And you pled to disturbing the peace f

on advice of counsel? ~ ~

A. Correct. ~ ~ Q. And after that then you also sued ~

the company that made the complaint? ~ ~

A. Correct. ~

~ Q. What did you sue them for? ~ A. For the false arrest. ii

~

Q. And then they went into bankruptcy? r~

;1

A. And then they went into bankruptcy ,l I

after the lawsuit was filed. I might add II that Lee Baca, who is now the Los Angeles 'j ,

a County sheriff, came out and took me out to ~

~

lunch to apologize for even having me !~

~ arrested. That, he said that that should never have happened. "

Q. Did the City of Hurricane police i

officer or chief of police apologize to you ~ I

in this case? "

i A. No. i

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Page 162 Page 164 ::

1 1 2 Q. Do you think it's fair to hold 2 3 Cleveland Construction responsible for other 3 4 subcontractors that were on that job? 4 5 A. If they're your subcontractors, yes. 5 6 Q. Okay. And so tell me, then, how 6 7 does that square with the statement you made 7 8 on your blog on May 19th of 2007? I won't 8 9 read the whole thing, but it says, Shortly 9

10 after 9 a.m. the first of several cement 10 11 mixers from Arrow Concrete driving onto the 11 12 Wal-Mart site wakes me up. Do you remember 12 13 that? 13 14 A. I remember, I remember there were 14 15 numerous times that Arrow Concrete trucks 15 16 woke me up. 16 17 Q. And Anow Concrete is not a 17 18 defendant in this lawsuit; correct? 18 19 A. Not yet. 19 20 Q. And then it says, I called the 20 21 company and they blame Cleveland Construction; 21 22 however, you can't ethically blame Cleveland 22 23 Construction for the noisy ttucks operated by 23 24 Arrow Concrete. Do you remember making that 24

I and property. ~ Q. Have you been to the Hunicane I

Wal-Mart? ~ A. Yes. ~ Q. You were there for the opening, were ~

you not? ~ A. I was not. l Q. You were not? ~

A. I was not. I hired Lawrence Smith ~ to cover the opening. ~

Q. When-- " .~

A. Actually, I hired him to take ~ !~

pictures of the opening. I wrote the story. ~ Q. When was the last time you were li

there? i A. Several days agth°' ? i Q. Why were you ere. ~ A. To try to purchase some baby ,\

formula. ~ ~ Q. Did you? ~

A. No, they did not have it in stock. 4

Q. Have you ever purchased anything from ~ h

the Hurricane Wal-Mart? [ 25 statement? 25

1 1 ____ ~~~~~ ____________________________ ~~--~A~.-Y~es~.----------------------------_4~

165 ~ ~ ~ ~ s ~ ~ w ~

Page 163

1 2 A. I recall making that statement. 3 Arrow Concrete should have quieter trucks. 4 Q. Okay. And do you, do you believe 5 that it's ethical to blame Cleveland 6 Construction for that? 7 A. If you're using a company that has 8 noisy trucks, then you should be, you should 9 be blamed for employing somebody that causes lOa problem. When you have -- you know, 11 Cleveland Construction had numerous 12 opportunities to cut down on the noise level. 13 Having cement mixers arrive at 6 a.m., you 14 know, is not an appropriate time. Not that 15 there's ever an appropriate time to send a 16 bunch of noise into somebody else's house. 1 7 Q. In your opinion, if all of the 18 construction had been confined from 9 a.m. to 19 5 p.m., would you still have all these 20 complaints? 21 A. I would still have some of them. 22 You know, I work evenings so I'm in my home 23 during the day. I have the right to peace 2 4 and quiet in my home. I don't think there's 2 5 ever a good time to disrupt somebody's home

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

Page

Q. How often do you shop there? A. Maybe once a month. I try to avoid

it, but sometimes with it being right there and having a need, you know, I do go in there. And I have a right to shop there like any other consumer. The first time I went was in the middle of the night when our baby was sick, and I had a choice of going to Kroger which was 20 minutes away or going to the Wal-Mart right there to get the medication, you know, get the medication for him and get it into his body quicker so he could feel better quicker. I chose the Wal-Mart. My son was more important. I'm assuming you would make the same decision.

THE DEPONENT: Is that rain? MS. SOLOMON: Um-hmm. THE DEPONENT: Great, my umbrella's

in my car. Honey, now that you know where the car -- I'm just kidding.

MR. KONST ANTY: Mr. Halburn, those are all the questions I have for you at this time.

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VIDEOGRAPHER: We're now going off ;j YtII:tZ "" " """'. :\'~«..:..;.<",n •• ,);:.'~~~)(.:.w.la



Page 166 Page 168 .~ ~

1 1 ~ ~

2 the record at 4: 15 p.m. 2 everything is acceptable. M

~ 3 (Whereupon, break.) 3 Q. What about--

~

~ 4 VIDEOGRAPHER: This begins tape 4 A. I have no problem with the noise ~ 5 number 4 in the deposition of Mark Halburn, 5 level on the construction site, but when it's r~ ~

6 and we're going back on the record at 4:25 6 coming onto our property and disrupting our " i1 7 p.rn. 7 home and making our lives miserable, their ~ 8 EXAMINATION 8 right to build a building is, you know,

I}

~: 9 BY-MR.MDLDOON: 9 there's no doubt about that, their right to

'* 10 Q. Good afternoon, Mr. Halburn. My 10 do construction, there's no doubt about that. ~ E 11 name is Jim Muldoon. We met briefly before 11 Their right to do that stuff is on our ~ ~

12 this all started a few hours ago. But I'm 12 property line. Ii "

13 here on behalf of the City of Hurricane and 13 Q. SO in order to be acceptable, the i 14 Ben Newhouse, and I'll be asking you some 14 construction noise would have to be as such ~

15 questions. And just as everyone else, if 15 not to come onto your property? , ~

16 you have any questions of me to clarifY 16 A. I would say so. They could put up ~ "$

17 anything, just please do that. Okay? 17 a sound wall, they could get quieter !i 18 A. Okay. 18 equipment. We put a man on the moon in ~!

ti ~

19 Q. I'm going to focus a little bit on 19 1969 and they're saying that they can't * 20 the actual complaint. It's probably going to 20 produce a quieter tractor in the year 2008. i 21 dovetail into some of the questions you've 21 I find that to be unbelievable. I don't y; 1

22 already been asked, and I apologize if 22 think they want to spend the money to buy ~

~ 23 they're a bit repetitive, but I want to try 23 the better equipment. ~ 24 to focus on a few different things. 24 Q. And that's just supposition on you, ~ 25 In ~our com12laint with regards to 25 you don't have any facts to support that do ~

Page 167 Page 169 ~ ij

1 1 h d..

2 the City of Hurricane, you have an allegation 2 you? i 3 that they didn't enforce their ordinance for 3 A. Correct. n

? 4 nOIse. 4 Q. In paragraph 10 of your, of count 2 :i

~ 5 A. Correct. 5 of your complaint, you talk about, Although i 6 Q. In the complaint we talked, well, it 6 repeated requests have been made to the City 7 lists as a restriction against excessive 7 of Hurricane. Can you describe those i 8 noise. We've talked a little bit about some 8 repeated requests for me? ~ 9 of the noises that you've experienced, but 9 A. We appeared before the city council

~

~ 10 can you explain in detail what excessive 10 in July of 2007, I had appeared before the ~ 11 noise is? 11 city council the previous December, I made ~

I 12 A. Noise that you can hear inside your 12 several phone calls to former Mayor Peak, ~ 13 home with the windows shut that's generated 13 current Mayor Edwards, city manager Ben ~ 14 hundreds of feet away. Noise that robs you 14 Newhouse, and they all basically said, Look, ~

'I 15 of the ability to enjoy your front yard and 15 you know, we want the Wal-Mart, the ~ 16 that wakes you up all hours of the night or 16 Wal-Mart's going to happen. I was told I ~

~ 17 early morning or late at night. Noise 17 was stupid by the now chief of police Mike ~

%

18 that's, you know, that's disruptive that 18 Mullins that, you know, you're stupid to, you ~ ~

19 basically steamrolls people that, you know, 19 know, expect them not to disrupt you, and, l ~

20 live near, you know, a construction site or 20 you know, to complain about it, and, you ~ 21 a business. 21 know, why don't you just shut up. And, you il , 22 Q. With construction sites, is there any 22 know, they basically have acted like first ~

~ 'I

23 level of acceptable noise? 23 class asses through the whole thing. Ii I,

24 A. I would imagine to the people that 24 And, you know, Mayor Edwards has " 1 25 are working on the construction site 25 told us, he says, you know, the bottom line .~ \~~l;j).:o.~ :;.l<...~"A>r~11t:'.u.~4~~..;;d~~1 -.r.:"~"R\!)';."""""..1.u~;:;,,,~~.'<ti~V."~""-'·,'>t,"".v.\'·";'; <!~"..<l.,.l'. !i!t-0I.l<.;'~.A')""\1~ .. ~'r~~v~·,-ru""""~·Mv.l-"r ... 1W.l-=>j!,. !i\'xo.::;><""';;~~~~ ':';"'''''::l>'H;d,~'.t,;r.~,,-,,''''·'>i;ViJ~·· t,t'r/f



Page 170 Page 172 il ~

1 1 ~ li ~

2 is, he says, you know, if it's a choice 2 Q. At one point. And that would have 3 between you guys and the Wal-Mart, we'd 3 been to the Kanawha Construction that's 4 rather have the Wal-Mart because it generates 4 adjacent to your property? ~ • 5 a whole lot more money and eventually you'll 5 A. Adjacent to their property, yes. l 6 get bought out. 6 Q. Did the police ever refuse to come ~ 7 Well, we were told that we'd get 7 out to your home? i 89

bought out before the deal closed, we were 89

A. Oh, many times. t,],

told we'd get bought out before the Q. When was that? , 10 construction started, we were told we'd get lOA. Through the construction, since the ~ 11 bought out before the construction. The 11 construction. ~ 12 store has been open since March 7th, and we 12 Q. What about preconstruction?l 13 still haven't had a, you know, a buyout. 13 A. With the Kanawha, not Kanawha, the .~ 14 We're still there. 14 construction company next door. You know, as £ 15 I think they tell us what they think 15 I said, I actually wrote a letter that was i 16 we want to hear while they do what they want 16 in the Hurricane Breeze prior to the 2003 ~ 17 to do and screw us and they get their, you 17 election saying why doesn't the city -- the ~

;~

_ 8 know, they get what they want. 18 nuisance ordinance is written in the sense ,~ 19 Q. Did Chief Mullins actually use the 19 that a police officer can cite someone. So ~ 20 word "stupid" or -- 20 why doesn't the city, why doesn't the police, 1 21 A. Yes. 21 I don't have the letter in front of me, but j

~ 22 Q. -- did he say naive? 22 why don't they come out and do something. ~ , 23 A. He actually said both. On more than 23 Pardon me. Then councilman Dave Boyles said, a 24 one occasion we had conversations about it. 24 Well, you know, they were there first and ~

1_2_5 __ C.:..:h.:.....i.:.....e'-'-f_M_uc..l_li;::;:n;:;..s..:;:.al:;::s..::..0.:.....r..::..efu=s..::..ed~to::..-;;;car:;::T..::..es::.,.:t...:ct=he.:..:=guY"--__ -+_2_5 __ t=h=is::..:l=·s..:l=ik:;.:e...:cs:..;:0=m::::ce:..;:bc..::o-"d",---,-ym.:.....o,,-v_i_nJ.l.-gn_e_x,-t t.:.....O.L...:..ac......ll ___ ---ii Page 171 Page 173 i

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5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that woke us up at 4:23 on Thanksgiving mommg.

Q. That would have been during the construction; correct?

A. That would have been during the construction, yeah.

Q. Now--A. I don't understand why he had to

show up at 4:23 to pick up equipment to take home to Pennsylvania on Thanksgiving morning. There's so many other times he could have done that.

Q. Before this construction started on the Wal-Mart project, did you make complaints of excessive noise regarding not Wal-Mart but some other entities?

A. The construction company next door. We've discussed that. And they were actually at one point cited until the police chief ripped it up or destroyed it or whatever he did to that citation. Former police chief.

Q. SO when you actually made the complaint someone did something?

1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16

~ kinds of bologna, you know. ;j

And the bottom line is I don't I understand why the city would want property 1 ~

that looks terrible that takes down property ! values of everybody else around it. I don't n

{} know why the city would want to have a city >

where people can't hear themselves think in I their front yard while the dozers are going a off. Or, you know, it's supposed to be a ! civilized society, not the wild wild west ~,' with -- you know. ~

Q. Has there ever been an occasion i where you made a complaint about the noise, ~ the police come out, maybe it's not that .~ noisy, have you ever run into that situation? }

't 1 7 A. No. What they've told me is, Hey, ~. 18 it's construction noise, you have to live :\ 19 with it. i 20 Q. Did any of the policemen ever say, ~ 21 Yeah, I agree with you that's excessive but :1,

22 it's construction noise? i 23 A. Yes. ~ 24 Q. Who would that be? I

A. At one point. 25 A. Runyon. What's the, what's the guy ~ ;'::':~~+l<,,:~w.J5l>.';','I.~:7""'''"'P ;:.,,,.~.'-1').""'~w..,\.'<. .. ,.\.:,.w~>.).z.<""""~ •• """..z.::;",~"'''''~M~='~~~'I.f.M.<.· ~~»="_~~.<;'~~j.<dil.~,Lv,,; ~



Page 174

1 2 that they, that Edwards fired? Mullins and 3 Wingo's brother-in-law. He was a chief for 4 a while. I can't remember. Joe. 5 MS. SOLOMON: Just say you don't 6 remember. 7 A. I don't remember. 8 Q. I don't remember is just fine. 9 A. You know, the chief before the

1 0 current one. 11 Q. Okay. The former chief of police? 12 A. One of the former chiefs of police. 13 Q. That's for the City of Hurricane? 14 A. Correct. 15 MR. KONSTANTY: Joe Sisk? 16 THE DEPONENT: Thank you. 17 A. Actually, Joe is his, his middle _ 8 name. His name is Sonny Sisko

19 Q. In that same paragraph you said that 2 0 the city willfully and intentionally refused 21 to enforce the ordinance? 2 2 A. Correct. 23 Q. Why do you believe they willfully or 24 intentionally failed to enforce it? 25 A. Because they failed to enforce it

Page 175

1 2 they did that willingly, they did it 3 intentionally, they repeatedly refused to take 4 action. The mayor in the, I think it was 5 July 2nd, 2007, council meeting, that should 6 be in the minutes, that, you know, we'll 7 enforce the noise ordinance. And two days 8 later she was crying calling me, you know, 9 on my cell phone as I was coming out of the

10 hospital for some testing, you know, it's a 11 quarter to 7, it's a holiday, I can't even 12 sleep. 13 You know, she was going through, you 14 know, a high-risk pregnancy and all of this 15 is going on. And, you know, what kind of, 1 6 you know, what kind of neanderthal would 1 7 blast a home with a woman that's going 18 through a high-risk pregnancy and continually 19 make all that kind of noise, and what kind 2 0 of neanderthal city would allow that to go 21 on? 22 Q. And you said you made a lot of 23 complaints about this? 24 A. Yes. 25 Q. When you made your complaints, well,

Page 176

1 2 how did you make your complaints? Let's 3 just go that way. 4 A. Sometimes I went in person, sometimes 5 I called, many times I sent e-mails to Ben 6 Newhouse and Scott Edwards, and Joe Sisk and 7 then Mike Mullins. 8 Q. SO and the police chiefs? 9 A. Most of the time they were ignored

10 with the exception of Patty Hager who's a 11 current councilwoman who wrote back and said 12 I don't care about your First Amendment 13 rights to, you know, referring to my right 14 to complain to my government officials, I 15 think it's redress your government for 16 grievances, wrote back and put in writing, I 1 7 don't care about your First Amendment rights. 18 Which I think stated volumes about her 19 arrogance and her stupidity. 20 Q. When you went in person to complain, 21 who did you complain to? 22 A. Ben Newhouse. 23 Q. Do you know when the first time you 24 went is? 25 A. Joe Sisko

Page 177

1 2 I don't recall. 3 Q. It would have been after the 4 construction started sometime? 5 A. Correct. There was no reason to 6 complain about the construction noise before 7 it started. 8 Q. What about Joe Sisk, when did you, 9 when did you first complain to him? lOA. During the construction. After my 11 arrest I remember discussing how is it that 12 somebody can falsely accuse you of something. 13 The police never even contacted me to say 14 what was your side of the story, they just, 15 you know, went out and got a warrant issued 1 6 and had me arrested. 1 7 Q. You also said that you called some 18 folks. Who did you call? 19 A. Don Chaney who's on the council, 2 0 Lana Call who's on the council. I spoke in 2 1 person to C. Brian Ellis, I don't know what 2 2 the C stands for. Brian Ellis is on the 2 3 council. And, again, we went to the 24 meetings and, you know, complained. 25 Q. When you complained, did you complain



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19 20 21 22 23 24 25

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 ".~

Page 178 Page 180 ~ M

1 1. .,

more than once in a day? 2 A. A lot of the excessive noise. ~ ~ A. Sometimes. 3 Again, I don't have a problem with !, ~

Q. More than-- 4 construction. We have construction going on M

A. And when we went to the meetings, I 5 down the hill from us that is probably the ~ remember Lana Call and Patty Hager saying, 6 same distance as part of the Wal-Mart store I Well, there's an exemption for businesses in 7 if not much of the Wal-Mart store, and I M

~

the noise ordinance. There's no such 8 don't hear it. There was some rock drilling ,1

~ exemption. You know, they would lie in a 9 for the bank or rock breaking for the bank, ~ meeting and say, Well, you know, there's an 10 and the KFC, you know, made some -- Arby's \ ~i

exemption. And when I asked them to produce 11 is going in. I've never had a problem with ~ it, they just sat there. 12 Arby's at all. 1,

~ Q. SO city council members were lying 13 Q. SO you just had to make a few 0 to you? 14 complaints and then that resolved itself? ~

4 A. Right. Well, you're in the business 15 A. Well, no. They basically did what ~

district so the noise ordinance doesn't apply 16 they wanted until they were done. But, you i to that. No, there was no, no exemption for 17 know, the bank noise, you know, since they ':\

businesses, no exemption for construction, no 18 broke the rock is, you know, rarely, I ~ exemption for anybody. But, you know, they 19 rarely heard anything, and when I have heard ~ 'iJ

wanted the Wal-Mart, so to hell with us. 20 it it's been when I've been driving down the ~ * Q. When you made these calls, did you 21 road with my window open or something. I 1 ~

use a cell phone or a land line? 22 don't hear it inside the house at all. ~ ~

A. Yes. Yes. 23 Q. SO -- ~ S

Q. Yes. Yes. 24 A. KFC was a constant problem. I What was your cell phone number at 25 Q. SO you think it was more of a

Page 179 Page 181 I ;~

1 ~ the time? 2 duration issue? If they're making, building ~

~ A. (304) 415-6397. 3 a bigger KFC you probably would have made a a Q. And what was your land line at the 4 few more complaints? I

time? 5 A. I don't know. I mean, that's A

~ A. It's always been, well, since we 6 speculation.

x

I moved to West Virginia or since she bought 7 Q. Did you ever get a chance to speak ~ the house, as far as I know, (304) 562-0524. 8 with the mayor about this noise level? ~

Q. Would you be surprised to learn that 9 A. Both of them. ~ there could be, you know, 10 to 15 calls 10 Q. What, what were the circumstances of :i made in one day? Would that surprise you? 11 those contacts? 11

~ A. Yes. 12 A. Well, I spoke to Mr. Peak on the l Q. What do you think the maximum number 13 phone and in person, and his response is, ~

of calls you made that day was? 14 Well, it's noisy, Mark, there's nothing we ~

A. I don't recall. However, the noise 15 can do about it. Mayor Edwards originally I continued all day and as long as it 16 said, Well, I'll enforce the noise ordinance, ~

~ continues and there's a law in the books 17 and then he, he would say nice things in the :~

that should be enforced, I don't have a 18 meeting to look good in front of everybody ~ problem with a person saying, Hey, you know, 19 and then not do anything about it. And then i

~ it's still not taken care of. Had the City 20 he later told me after the July 4th I of Hurricane properly enforced its noise 21 situation when I called him on the telephone, ~ ordinance, a lot of this would not have 22 he says, Unless the circuit judge makes me I happened. 23 do it, I'm not going to do it, I don't care

'y

Q. By a lot, you mean the construction 24 what the law says. You'll have to get a of the Wal-Mart? 25 court ruling to make me enforce that law. I

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184 t ~

Page 182 Page

1 1 ~ ~ 2 Q. What about the in-person contacts 2 doesn't do anything, do any good to complain, B

3 with the mayors, where did they take place? 3 the city does what they want and they're ~ 4 A. With Mayor Peak at city hall, and I 4 going to do what they want. Although he did I 5 think once I saw him at the post office. 5 go to city council and complained about noise ~

" 6 And Scott Edwards city hall. And then there 6 and traffic and... i 7 was a time when our roadway was blocked and 7 Q. What happened at the city council ~

~ 8 Dolores couldn't get to our home. When 8 meeting? i 9 Scott Edwards came and trespassed on our 9 A. Oh, they sat there, they listened ~

10 property after I told him not to walk on our 10 and they did whatever they damn well pleased. ~ 11 property, he did it anyway, and I had 11 They don't -- Hurricane doesn't enforce any i 12 contact with him there. And that's on the 12 law that HUTI"icane doesn't want to enforce, ~ 13 video. 13 whether it's the nuisance law on the property .~ 14 Q. And what did you tell him? 14 next door. I get e-mails and phone calls ~ 15 A. Well, we were complaining at that 15 from people. I'll give you an example. ~ 16 point mostly about the lack of access to, 16 They cited our property a few, while I was i

~ 17 you know, to our home. They, you know, 17 in South Carolina when Dolores was pregnant. ~ ~ 8 blocked the roadway after they sent us a 18 We had some weeds on a hill in back of our 1 19 letter saying, you know, they meaning the 19 home as lots of people do, and they gave her ! 2 0 construction people and Putnam Sewer District 20 I believe it was 48 hours to clean up those ~ 21 and Mike McNulty sent us a letter saying 21 weeds. And she had to buy a bigger weed ~ 22 that, you know, there shouldn't be a problem 22 eater and hire her nephews to help clean it ~

~ 23 and it's going to happen on the other side 23 up. I was out of state. i 24 of the road from your house. And, you know, 24 Scott Edwards' building, the mayor's 1 2 5 like I said earlier they will say what they 2 5 building had weeds on his property, because I ~

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1 1 2 want to, you know, try to appease people and 2 was in town about a week later, took 3 then they just do whatever they want. And 3 pictures of them. There's still holes in 4 once they're in the middle of it it's like, 4 the siding, there's a bullet hole in the 5 Well, you know, what do you want us to do 5 window that months later is still there. 6 about it, what can we do. It's like, Leave 6 They won't enforce the nuisance law against 7 us alone. I think those three words 7 his unsightly property, which it clearly says 8 probably sum up this whole problem, Leave us 8 if anybody can see it and it's, you know, 9 alone. Had they left us alone, we wouldn't 9 unsightly or whatever from, you know, from a

10 have had, you know, we wouldn't be here 10 public place, that it's a nuisance. They 11 today. 11 won't -- and it's still like that. I've got 12 Q. I don't, I don't want to take your 12 pictures taken six months later, and I think 13 words out of context, but I think you may 13 if I were to walk you out there today the 14 have said that you spoke with a Mr. Clay -- 14 bullet hole is still in the window, the 15 is he one of your neighbors -- about the 15 siding is still missing. He did cut the 16 noise level? 16 weeds. 1 7 A. He is one of my neighbors, yeah. 1 7 But, you know, hey, it's, you know, 18 Q. Did you get to talk to him about 18 the Wal-Mart neighbors, they'll screw us but, 19 the noise levels? 19 you know, the city council Brian Ellis's 2 0 A. I had talked to him about the noise 2 0 street where his home and business is, people 21 levels. 21 complained about the traffic on the street, 2 2 Q. What did you talk to him about? 2 2 they put in speed bumps like that. We 23 A. About how bad they were. And he 23 complain about the noise, they don't do

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24 says, Yeah, they're bad, but he says, you 24 squat. It's a double standard. , ~ 25 know, they won't do anything about it, it 25 Q. You said that -- i

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47 (Pages 182 to 185) f011 b12a-1 cae-4351-a011·04e1 c42b5e3c


Page 186

1 1 2 A. And you can come out and see those 2 3 speed bumps, too. 3 4 Q. You said that your wife was cited 4 5 for failing to maintain the property, cutting 5 6 the weeds and that? 6 7 A. The weeds on the hill. We have a 7 8 hill in back of our home that is probably 8 9 150 feet, 200 feet from the roadway. It's 9

10 not a situation where it's not a, you know, 10 11 it's a semi rural area. Wal-Mart's hill, by 11 12 the way, I have pictures of all the weeds on 12 13 their hill and most of them are still there, 13 14 but we got, you know -- they come out and 14 15 cite a pregnant lady knowing that her 15 16 husband's out of state, giving her 48 hours 16 17 to fix it or a $500 fine. But the mayor's 17 .8 property, it can look like shit. 18

19 Q. Did you get the -- so you had your 19 20 nephew come out and fix that problem? 20 21 A. Her nephews. And the mayor's 21 22 property still looks terrible. And here's 22 23 the punch line. After I went out and took 23 24 pictures of it, put that on my web site, he 24 25 had Mike Mullins who was then the captain 25

Page 187 ..

1 1 2 call me up and say, Hey, he doesn't want you 2 3 on your property. I told Mullins, Has he 3 4 ever heard of zoom lenses? 4 5 Councilman Hager had weeds on her 5 6 property. Councilman Ellis had weeds in back 6 7 of his propeliy. But, you know, they've got 7 8 to go after a pregnant lady. 8 9 Does that make your clients feel 9

10 more like tough men to harass a pregnant 10 11 lady like that? 11 12 MS. SOLOMON: Don't ask him any 12 13 questions. 13 14 THE DEPONENT: He's laughing, for 14 15 the record. 15 16 Q. I believe you may have testified 16 17 earlier that you believe that the City of 17 18 Hurricane is corrupt? 18 19 A. Um-hmm. 19 20 Q. How so? 20 21 A. They allow the mayor and their 21 22 council people to do what they want. They 22 23 go after people that are critical of them. 23 24 They harass citizens of -- I get complaints 24 25 about people that say that, you know, a 25

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Page 188 (j

I Realtor contacted me and said that her client n

~

was told the grass was too tall, and they I had to go out and cut it. I went out there and Mayor Edwards' home grass was i taller than the grass at the house that was ~

'I for sale. They don't enforce the laws that ~ they want. i

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FOIA law in West Virginia doesn't allow for ~ ~

charging for research, but nobody's going to ~ pay $35 an hour for -- and, of course, the ti reason for them doing that I believe is that

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they don't want anybody to see the paperwork. a l

They don't want anybody to know. The ~ n election for the mayor, which is supervised ~

by their own recorder, which is a complete ~ conflict of interest because she was also a running for office, that case is in the ~

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Supreme Court's hands, it's going to be heard ~

~ , in November. And a lot of people feel that " ~ was rigged. The unsealed ballots are what ~ got the mayor in. On the last ballot box, ~

" he was losing all night long until the ~

Page 189 ~ ~ ~ I unsealed ballots were counted. And you can

laugh, but a lot of people don't think ~

i that's funny. , Q. I don't think I'm laughing. »

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Is it a fair statement that you ~ believe that there's random law enforcement .~

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in the City of Hurricane? ,~

a A. I would say that there's random law \1

enforcement, I would say there is malicious il J law enforcement. 'I

Q. Is any of this based on first-hand ~ ~

knowledge? l , A. Yeah. I mean, me. They prosecuted ~ ,!

me on a he said situation where I was ~

investigating a blaster that wasn't licensed. [I

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they knocked out the power at the KFC I construction. I went down and took pictures ~

of it, and the guy that knocked out the ~

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VIDEOTAPED DEPOSITION OF MARK VANCE HALBURN 1 JULY 23 1 2008

Page

1 2 to drive by. I stopped him, told him about 3 it, the witness says, I saw it happen, and 4 he just drove away. Now -- but he 5 prosecuted me. You know, I had an 6 eyewitness that said this guy attacked him, 7 but Lusher drove away, didn't do anything. 8 Q. Are you aware of any other let's say 9 random law enforcement with not you as being

10 one of the complainants for the victims? 11 A. Well, yeah. You have a city 12 councilwoman who had the weeds in her front 13 yard. She also, by the way, I believe it 14 was the 29th of May through the 5th of 15 April, had a mountain size or a small 16 hillside size stack of boxes out on the 17 street or next to the street outside of her 1.8 business/home, Patty Hager. I contacted city 19 hall. Sam Cole who ran against Scott 20 Edwards told me that he contacted city hall 21 about the mess, and nothing was done about 22 it for, you know, pretty close to a week 23 when they -- I don't know if they were 24 picked up or stolen or what happened, but 25 they were finally gone.

Page

1 2 You know, we've talked about the 3 situations with Edwards' business. We've got 4 the construction yard next door that's looked 5 terrible. I mean, there's weeds behind that 6 today. There's weeds in that construction 7 yard today that, you know, right next to our 8 property. We get cited, the property right 9 next door has weeds, they didn't get cited

10 and they're still there. You know, it's 11 like Dukes of Hazard, and what was his name, 12 Rosco Coal train or whatever. I mean it's ... 13 MR. KONST ANTY: It's Rosco Pecotrain, 14 for the record. 15 A. Yeah, somebody once, somebody just 16 said, Welcome to West Virginia. I don't 17 think it's like that in most towns. 18 Q. Were you ever prohibited from 19 attending a city council meeting? 20 A. No. 21 Q. Were you ever removed from a city 22 council meeting? 23 A. No. 24 Q. In count 2 paragraph 11 of your 25 complaint, it goes into an issue of some

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blocked phone calls. I want to focus a little bit on that for a few questions.

A. Sure. Q. In your own words, what that's issue

about? A. They have blocked the phone lines to

the police department, the phone lines to city hall were blocked from both my home phone number and my cell phone number. Recently I noticed that the line to city hall now works for my number. They were blocked from -- I don't know about -- I believe Dolores's cell phone number.

At one point when I was in Myrtle Beach, Conway, Myrtle Beach, working last summer, our water was out. Dolores could not call city hall to report the water outage. She called me and I happened to have the cell phone number of Ronny Woodall, I think is his name, the water superintendent. I had to call him from South Carolina on my cell phone to tell them that the water was out at my house in Hurricane because my wife could not call.

Page 193

The only line that has been accessible consistently is they're -- there's a police department ticket line that you call and you get an automated voice saying the price of this ticket is this and then you push zero. I can get that on my cell phone only. So if I had to call the police department over the last year or so, I use that number, press zero, and hope that the secretary picks up. All of the other lines have been blocked.

If there's an emergency and we need to call the police department, we can't call the police. We can call 911, but we can't call, we cannot call the police department.

This has been brought to their attention. Chief Mullins has promised to get it fixed. It hasn't been fixed. He told me that this was done at the direction of Ben Newhouse because Newhouse thought that I complained about the noise too much. Rather then enforce the noise ordinance, rather than do anything, Newhouse made the decision to go ahead and block the phone lines, which



Page

1 2 violates our First Amendment right to redress 3 our government for grievances. 4 Q. Did he state that you were 5 harassing? 6 A. Pardon me? 7 Q. Did Mr. Newhouse ever state that you 8 were harassing him? 9 A. He sent out a letter saying that our

10 calls of complaint to the city council could 11 be, I don't have the letter right in front 12 of me, but, you know, could be or are 13 harassment. We were simply redressing our 14 government for grievances and saying, Hey, 15 there's a problem here. 16 You know, build your Wal-Mart, God 17 bless you. I have, you know, I have no '_8 problem with businesses coming into Putnam 19 County. I have given Ben Newhouse, Gary 20 Walton with the PCDA, they had a group 21 called Operation Ignite, a list of businesses 22 that I know of in other states, California, 23 Kentucky, the Carolinas, and said, Hey, I 24 think these would be very successful here. 25 But when you operate a business, you have a

Page

1 2 responsibility to not disrupt your neighbors. 3 I'm sure, and I'm assuming, but I'm sure 4 that if I walked in your law firm with my 5 notebook computer and said, Hey, I've got 6 this web site, it's progress, I've got to 7 work, I'm earning a living, this is a great 8 thing, stop everything you're doing and look 9 at what I wrote today, you would have the

10 police there and throw me out in five 11 minutes or less. But yet the construction 12 industry can terrorize people's neighborhoods 13 for hours and days and months, and you know, 14 even more than a year and we're supposed to 15 sit back and say, Oh, that was great, can I 1 6 have some more. 1 7 Q. How are you damaged by tlus, blocked 18 phone calls?' 19 A. Again, as I said earlier, the 20 inability to redress my government for 21 grievances. The ability, inability as a web 22 site publisher to contact the police 23 department and say, Hey, you know, so and so 24 was arrested, they're on the web site, the 25 jail says it was done by the City of

194

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Hurricane, you know, give me some background on the arrest, what happened, where were they arrested, because the jail will say, the jail will have the name of the person, the charges, the bail, you know, and he was arrested for Du!. But they won't have who pulled them over and why did they pull the -- you know, and stuff that background information that you get by contacting the police department.

Q. Could you physically contact the police department, meaning drive down and talk with someone?

A. I could. That takes, that takes time, that takes gas, which continues to increase, which is not the fault of the City of Hurricane. But no one else, nobody else has to do that.

I might add that I've complained to the sheriffs department about noise, I've complained to the county. Nobody else blocked their phone lines except for the City of Hurricane. They're taking the attitude we'll just tum our back on the situation,

Page 197

2 and, you know. 3 And Ben Newhouse advised me on two 4 different occasions to move. Ben Newhouse, 5 the city manager, who advised a long-time 6 Hurricane, I think after eight years you can 7 call me a long-time resident, and, you know, 8 before that I was dating her and visiting, 9 and you know, and she's lived there for 15

10 years, 16 years. Here's a guy that doesn't 11 even live in the city telling us we have to 12 move. I can solve that problem in two ways. 13 Ben Newhouse buy, comes to buy our house, 14 we'll move, and he'll live in the city. End 15 of problem. 16 Q. When did you have those conversations 17 with Ben? 18 A. Once about a year ago. And they 19 had a send-off for Mayor Peak, who retired, 20 and the night of ills send-off I approached 2 1 Ben to complain about the noise and he 22 looked at me and says, Move. I mean, that's 23 completely arrogant. 24 Ben, by the way, lives on a nice 2 5 quiet neighborhood. He didn't put the



Page 198

1 2 Wal-Mart across the street from his house, 3 although I wouldn't object ifhe put another 4 one in there. 5 Q. Now, you did state that you still 6 have your 911 service? 7 A. I still have my 911 service. 8 Q. And that's never been disconnected or 9 stopped or blocked?

10 A. Correct, to my knowledge. 11 Q. Have you ever had to caIl 911 ? 12 A. Can't remember when it was that I 13 had the breathing problem where I had to go 14 to the hospital, and then she had a 15 situation where after she had the baby, it 16 was a C section, there was a wound, the 17 wound reopened and was bleeding, and I had 18 to caIl 911. 19 Q. There were no problems with those 20 phone calls? 21 A. There were no problems with those 22 phone calls. 23 And this really is a case of common 24 decency, and the City of Hurricane couldn't 25 spell "common decency" if I spotted them the

Page 199

1 2 vowels, the consonants and brought in Vanna 3 White to tum the letters. 4 Q. In the paragraph 11 you also say 5 that it otherwise interfered with your state 6 constitutional privilege to petition the 7 government for redress. That's just not 8 being able to call the, that police 9 department or the city hall?

10 A. And I wish that that could say 11 instead of privilege, right. Because that's 12 in the Bill of Rights in the First 13 Amendment, which apparently the people that 14 run the City of Hurricane either have never 15 read, don't understand or have forgotten 16 about. 17 Q. Your next count has to do with the 18 vegetation and the citation. We talked a 19 little bit about that. 20 A. Right. 21 Q. Anything else t() add on that issue? 22 A. Again, common decency. They, they 23 could have given her several weeks so that I 24 could come back in town and work on it. Or 25 quite frankly they could have ignored the

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Page 200 ~ .~ ~

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2 problem with us like they did on the mayor's (~

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3 business or the neighbors on both sides of <

~ 4 us and half the rest of the city. We don't "

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5 -- we didn't have a problem, you know, and i ~ 6 we've since hired a kid that ironically lives $

7 in Hurricane, and I'm giggling because his ~ 8 last name is Kidd, but a teenager, you know, ¢

9 who, you know, has come out and groomed that ~ 10 hill again.

* I'

11 We don't have a problem, you know, ~ 12 complying with the law, you know, but going i 13 to a woman in August when she's, you know, '1

~ 14 extremely pregnant in a high-risk pregnancy, ~

15 someone who's, you know, not even working ~ , 16 because she's not allowed to work because of ~

~ 17 her medical condition, and giving her 48

I 18 hours to chop weeds down that aren't hurting 19 anybody when right across the road in front 20 of our house the weeds along the Wal-Mart

I 21 property, they were tall. I've got video 22 and pictures of all ofthis. What they did 23 was despicable. What they, what they did ; 24 was despicable. (! , 25 Q. Did your wife suffer any physical

, i

Page 201 M ;~

1 ~ i

2 injuries because of that? i ~

3 A. She can answer that question. I was I 4 in another state. You know, probably some .~ ,! 5 cuts and lacerations. ~ 6 Q. I believe you testified that her g

7 nephew fixed it? ~ ~ " 8 A. Nephews. ~ N

9 Q. Nephews. ~ ~

10 A. I think she hired at least two I 11 nephews. 12 THE DEPONENT: Dolores? I 13 Q. We can ask-- i 14 MS. SOLOMON: Just tell him you S 15 don't know. ~ , 16 Q. We can ask her about that. :l

.~

17 A. I don't recall. I think she hired ~ 18 two of them. J

~ 19 And the thing about it is our ~

~ 20 neighbor John Clay went to a city council ~

21 meeting and said that he rides, there's a i ~

22 hill in back of our home and he rides his ~ ~

23 riding mower up there when he didn't flip it ~ 24 over th~ wall recently while ?e was minding I 2 5 my busmess when I was talking to a realtor !

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Page 202

1 2 broker, but, and said he couldn't hear, and 3 even Scott Edwards in the council meeting 4 made the comment, Oh, is that Mark Halburn's 5 property. You know, I don't know if John 6 Clay was asked by Edwards to bring it up in 7 the meeting. It seemed awfully, you know, 8 suspicious to me. 9 Q. The next paragraph talks a little

10 bit about selective enforcement of laws. I 11 think we've covered that quite a bit. 12 A. Yeah. You know, they use the laws 13 to pick on the people that they don't like, 14 and their friends and buddies and cronies 15 they let get away with what they want. And 1 6 then, like I said, the speed bumps on, you 17 know, Councilman Ellis's street, somebody went ~ 8 down and complained and, bam, they approved 19 it right away. We go down, yeah, we'll 2 0 enforce the noise ordinance, but they don't. 21 Q. The next paragraph talks about on 22 August 15th of 2007 you received a letter 23 from Ben Newhouse which threatened you and 24 your wife with pros.ecution if you continued 2 5 to make complaints about the enforcement.

Page 203

1 2 What was the substance of that letter? You 3 don't have to say it word for word, but what 4 was the substance? 5 A. Yeah. It was harassment by Ben 6 Newhouse of people that were complaining 7 about excessive construction noise. It was a 8 violation of our First Amendment rights to 9 redress our government for grievances by a

10 city manager who doesn't even live in the 11 city and has ordered us to move. It was 12 plain and simple, despicable behavior by an 13 out of control arrogant city manager. 14 Q. Did he--15 A. Those are the words I can use with 16 the ladies in the room. 17 Q. Did he allege that you were 18 harassing? 19 A. Yes. 20 Q. Are you aware of anyone else 21 receiving letters? 22 A. No. 23 Q. Were you ever prosecuted for 24 threatening or not, for complaining? 25 A. Just the prosecution, the malicious

Page 204

1 2 prosecution by Cleveland Construction when I 3 discovered their blaster was blasting without 4 a license. 5 Q. But you'll agree the city had 6 nothing to do with that? 7 A. No, I think the city, I think the 8 city had everything to do with that. I 9 think that they took that as an opportunity

10 to try to shut up one of their critics and 11 order the police department to go over there 12 and have me arrested. They never contacted 13 me. If they did, they would have found out 14 what I was calling about. The man was cited 15 for not having a license. He whined and 16 said, Well, my boss didn't renew it. That's 1 7 like somebody that drives a truck saying, 18 Well, it was my boss's responsibility to 19 renew my driver's license and not my fault 2 0 because my license expired. 21 Q. SO the, so the city just randomly 22 sent police over or intentionally sent police 23 over? 2 4 A. They never sent them to me. I 25 never heard about it until I was arrested.

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

Page 205

They never got my side of the story. And in any issue there's at least two sides of the story.

Q. SO --A. They talked to, they talked to the,

you know, to the liar at Cleveland Construction and took his word for it, had me arrested, and when it went to court I was acquitted, as I should have been. It should never have been, it should never have been charged.

Q. SO how did the city act improperly on that case? A. By refusing to get the rest of the

story, by going for a warrant for my arrest, by arresting me, by doing it at 1 or 1:30 in the morning and scaring Dolores and her mother that was with us and by having me jailed, violating my civil rights. My mug shot was on the internet, it was on other blogs, it was in the newspaper, the story was on the radio. It was a blatant intimidation tactic on the part of the City of Hurricane and Cleveland Construction to



Page 206

1 2 try to shut up somebody that was reporting 3 that their blaster wasn't licensed and 4 illegal activity was going on. The only 5 thing more despicable about that is the 6 people that represent the City of Hurricane 7 and Cleveland Construction that, you know, 8 are trying to say that they did the right 9 thing.

10 Q. SO you just believe it's total 11 retaliation? 12 A. Absolutely. 13 Q. The Ben Newhouse letter, did you 14 ever talk with anyone else about that letter, 15 besides your council? And I don't want to 16 get into attorney-client privilege. 17 A. Not that I recall. .8 MR. KONSTANTY: I don't mean to

19 interrupt, but do you still have a copy of 20 that letter? I haven't seen it. 21 THE DEPONENT: Our attorney has a 22 copy, Mr. Clifford has that letter. 23 MR. KONSTANTY: Is there some reason 24 why it hasn't been disclosed in this case

Page

1 2 A. If I was making noise that disrupted 3 my neighbors, my neighbors wouldn't have to 4 complain 1 0, 15 times. 5 You know, we used to, a couple of 6 times we held a luau in our yard, and I 7 went to Mr. Clay and the people there and 8 said, Hey, we're going to hold it on this 9 date, is that a problem, if it gets too

10 noisy, let us know. That's what considerate 11 neighbors do. 12 But until the problem is resolved, 13 yeah, absolutely. I don't have, you know, a 14 problem with somebody complaining multiple 15 times. And several times when I talked to 16 Ben his response is they're still blasting? 17 He wasn't aware that the problem was 18 continuing, and I believe that, you know, his 19 response wasn't being facetious, I believe it 20 was legitimate, especially when the blasting 21 was supposed to end in I think it was June 22 or July and Kanawha Stone signed another 23 contract and more blasting continued. And I 24 remember going to him in city hall and he

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25 yet? 25 said I didn't know that they were still

Page 207 Page

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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THE DEPONENT: I thought it was 2 blasting, I'll look into it. And I think he fi disclosed in the, in the complaint. There 3 was genuinely shocked that it was still going ~ was disclosure of the letter there. I mean, 4 on, but also negligent in not being up there ~ , the complaint discloses the letter. As far 5 to find out what's going on in his city. ~ as a physical copy, that you would have to 6 He should have done that, he should have ~ ask Mike Clifford. 7 known. :

MR. KONSTANTY: Okay. 8 Q. I want to tum gears just for a ~ MR. MULDOON: We can do that. 9 second and talk a little bit about some ~ THE DEPONENT: I do know that he 10 damages that you're claiming as a result of l

told us to get him the original ASAP, and I 11 the actions of the defendants. ~ believe that she brought it to him within a 12 In your complaint you allege that i

\! day or so. 13 there's some permanent injuries. What would i!

Personally when I read it I couldn't 14 the permanent injuries be? ~ believe that anybody could be so stupid as 15 A. I'll let you ask my counsel who ~ to write something like that, but then I 16 wrote that. ~ considered Ben Newhouse and that adds up. 17 Q. SO you're just not aware of -- t BY -MR. MULDOON: 18 A. I believe he's referring to the 1

Q. How often do you feel that a person 19 devaluation of the home. $

should be able to complain about something? 20 Q. No physical permanent injuries? , A. Until the issue is resolved. 21 A. We have not been physically l Q. In one day? 22 permanently injured. ~.: A. Until the issue is resolved. 23 Q. What about psychological permanent ~

Q. SO you wouldn't have a problem with 24 injuries? ~ someone complaining 10, 15 times in a day? 25 A. There's still pictures of my mug ~

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Page 210

1 2 shot out there on the internet. You know, I 3 mean --4 MS. SOLOMON: Stress. 5 A. Yeah. I found out, for example, I 6 used to work at Rock 105, and that group is, 7 we mentioned earlier, as a public affairs 8 there, somebody I know got hired to work 9 there, and I don't want to mention who

10 because I don't want it to get back to them, 11 and he happened to call me about something 12 completely unrelated, said, By the way, do 13 you know that your mug shot is up in one of 14 the control rooms. You know. 15 Q. SO it's more of an annoyance and 16 embanassment type of thing? 17 A. Yeah, and humiliation. .8 MS. SOLOMON: Trust. I don't know 19 if you have it. 20 THE DEPONENT: Well, yeah. 21 A. You know, I don't trust the City of 22 Hurricane, I don't trust the government. I 23 don't trust the government in West Virginia 24 period. 25 Q. Whyis that?

Page 211

1 2 A. Because look at all this crap that 3 we've been put thr~ugh. A reasonable 4 government would say, Okay, fine, let's have 5 a noise ordinance that protects these people. 6 And, you know, the other attorney, I don't 7 remember, I think Ms. Sanders made the 8 comment, you know, you went to the state. 9 Yeah, the reason I asked for a state noise

10 ordinance is because it takes it out of the 11 hands of the local government that could sell 12 their souls for a Wal-Mart and tum their 13 backs on their people, whereas if there's a 14 state ordinance you can call in the WVDEP 15 just like we did when there was smoke, and 16 they came down within a day, cited them, the 17 smoke, the burning got stopped, actually got 18 moved to the other side of the property, 19 because the burning was done right next to 20 the edge of the property closest to our 21 homes. They had to move it over to the 22 other side and they said there will be no 23 more burning, and a couple of days later I 24 come home and you could see the flames, and 25 they shut it down.

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

1 2 3 4 5 6 7 8 9

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Page 212

There should be a state response. Now, the state people, and I understand their point of view, says, Well, the problem is if we make a law, you know, restricting construction noise in West Virginia, nobody will build in West Virginia, that will hurt us. So that's when I went to the Feds and said, Okay, let's eliminate that, just make it a federal standard that people, you know, the construction noise has to be, you know, curtailed to the construction site in every state so that people aren't going to build in Kentucky and build in Pennsylvania, build in Maryland, build in Ohio, and not West Virginia because we have a law that protects our citizen's rights properly and the other states don't. So, you know, we lose jobs, we lose business. I don't want to see anybody hUli, but at the same time there's common decency and there's common sense.

You know, some governments can be trusted more than others. I grew up in the hometown of Richard Nixon. I learned, you know as a very small child that politicians

Page 213

will lie, they'll cheat, they'll steal, they'll cover up crimes to do whatever they want to do, and I think that's what goes, a lot of what we see around West Virginia. Look at Nitro. Need I say more? Q. Cunently, I don't know if we -- I

don't know if you're still taking -- you are taking blood pressure medication?

A. Yes. Q. Any other meds right now? A. I have some diabetes medication that

I'm actually out of it, I need to get refilled, but...

Q. The diabetes you're not alleging as part of this lawsuit at all, are you? A. No. Q. Just the high blood pressure, which

we've talked about already? A. Right. I don't know if they're

related. I -- you know ... Q. Have we talked about all of your

complaints in this lawsuit with regard to the City of Hurricane?

A. For the most part, yes.



Page 214 Page 216 I 1 1 t,','

2 Q. How about Mr. Newhouse also, we've 2 people the way we've been treated. ~ 3 talked about all those complaints? 3 And the amazing thing about it is ~ 45 A. They should fire him. You know, 4 they've destroyed property value in the city ~.',i,'

it's just incredible that a city manager who 5 that destroys tax revenue that hurts them. l

6 doesn't live in the city, even ifhe did 6 They could build the Wal-Mart in a proper t 7 live in the city, to tell people that have 7 way. If you go down to the Wal-Mart in ~ 8 been here for that long, Well, if you don't 8 Barboursville and you take a look at the f 9 like it, move, you know. 9 mounds and the berms next to the Wal-Mart ~

10 I mean, this is a home that my wife 10 and across the street next to the homes, ~ 11 and mother-in-law invested in. You know, 11 that was done in a way that protected i 12 we've spent thousands of dollars renovating 12 everybody. The Wal-Mart has its business, ~

l 13 the home through the years to make it nice. 13 the traffic doesn't go in front of the ~ 14 It's my understanding from what the police 14 homes, there's something to stop the noise. ~ 15 have told me, including Joe Sisk, including 15 None of that was done in Hurricane. I mean, ~ 16 Dave Boyles, former city council person, that 16 I think it was planned by, you know, %

1 7 when she bought the home it was the ugliest 1 7 somebody with a three-year-old's amount of ~, ~ ,8 home on the street and now it's the best 18 intelligence, and I don't really want to l\

19 looking. I wasn't here then to see how ugly 19 insult the three-year-old. Would you want to ~ 20 it looked. But, you know, even Boyles who 20 live across the street from that? ~ 21 disagrees with me about enforcement says, 21 THE DEPONENT: He didn't say yes. ~ 2223 Yeah, your wife, you know, the first thing 2'2 MS. SOLOMON: All right. rl',l{.

she did was fix up the outside of that home 23 MR. MULDOON: I don't think I have " 24 1

2 5 and made it look good for the neighborhood. 24 any more questions right now. Does anyone ~ Then we started working on the inside. You 25 else have any follow-ups? ~

1------------------~--~----~~~-p-a-g-e--2-1-5-+----~~~--~~~--~-------------p-ag-e--2-1-7~!

~ 1 2 3 4 5 6 7 8 9

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1 know, and we've still got more work to do. 2

It's frustrating. The other day I 3 saw a gazebo, I'd like to buy a gazebo and 4 put it in our yard, but what's the point if 5 we're going to have to move, you know, we've 6 got it for sale to move out of there. 7 We've got carpeting in a room that we would 8 like to replace and some other things. All 9 that stuff is on hold because, you know, we 10 don't want to live there anymore. Our 11 lifestyle has been destroyed by a corrupt 12 city that has turned its back on its 13 long-time citizens. 14

She's done nothing to them. I mean, 15 if they want to go after me because I point 1 6 out their stupidity and their corruption and 1 7 the things that they, you know, that they do 18 and don't do and their selective enforcement 19 and their harassment, if they want to go 2 0 after me, that's one thing. Pick out a 21 pregnant woman, have our baby woken up at 5 2 2 in the morning or at midnight or whatever, 2 3 that's despicable. Only a neanderthal would 24 do that. Only neanderthals would treat 25

MR. WHITE: Yeah, a few. VIDEOGRAPHER: We're going off the

record at 5: 14 p.m. (Whereupon, break.) VIDEOGRAPHER: This begins tape

number 5 in the deposition of Mark Halburn, and we're back on the record at 5:22 p.m.

EXAMINATION BY-MR. WHITE:

Q. Mr. Halbum, my name is Patrick White, and I'm here on behalf of Kanawha Stone. I'm going to ask you a few follow-up questions.

And if we could, just briefly, where were you working in November of 2006? Were you at Cingular?

A. Yes. Q. And how long were you at Cingular? A. I started I think it was May 9th,

2005, and left the end of January, the last part of January 2007.

Q. Okay. A. And then I also substitute taught in

the Kanawha County Schools on occasion. I

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Page 218

1 2 didn't teach that often by choice. They 3 called me all the time. But my primary 4 employer was Cingular Wireless. 5 Q. And then in February '07 where did 6 you go? 7 A. PRC in Huntington. And the reason 8 for doing that, I was just tired of the 9 commute.

10 Q. I'm just trying to get a time line 11 --12 A. Sure. 13 Q. -- set for answering questions. 14 And you were at PRC how long? 15 A. Until I think it was June. 16 Q. And that's when you went to South 17 Carolina? .8 A. 2007. I gave notice, and they, like

19 a lot of employees when they give notice, 20 they buy you out, and they bought me out. 21 And then I went down to -- I think it was 22 July 7th I started at WPDE in Conway, Myrtle 23 Beach. 24 Q. Okay. When you worked at Cingular 25 in Grayson I believe you testified that your

Page 219

1 2 shifts were somewhere between 2 and 11 or 3 3 and 11? 4 A. Correct. 5 Q. Somewhere in that neighborhood? 6 A. Usually, not always. And then on 7 Saturdays they were, I believe it was 11 to 8 7 or 10 to 6 or in that. They were more 9 midday Saturday, because we weren't open past

10 7:00. 11 Q. How long did it take you to get, to 12 drive from your house to Grayson? 13 A. 45 minutes to an hour, depending on 14 traffic and how fast I went. 15 Q. Okay. So if you had to be at work 16 at 2:00, you would probably leave 12:30, 12? 17 A. Or, well, at 2:00, I'd probably 18 leave about 1. 19 Q. I? 20 A. And 1:15. But, again, I didn't work 21 every weekday. I usually had a weekday off, 22 either a Tuesday or a Thursday, and I think 23 it was usually Thursday that I was off 24 during, off, because I worked, I worked on 25 Saturday, so I got a weekday off, and I was

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off -- pardon me. Sorry about that, Mr. Headset. I was off on Sundays.

Page 220

Q. During that period of time, how many blasts did you experience? A. A lot. I don't have an exact

count. I've made notes of them, you know, in the blog.

Q. You were present for all the blasts on your blog?

A. I was present for all the blasts that I -- no. I was present for some of the blasts, and some of them she told me when they were and I noted them on the blog. There were a couple of times that she would call and say, you know, the house just rocked.

Q. SO you really can't use the blast as a guide as to whether or not you experienced the blast?

A. I can use most of them as a guide. Q. But you weren't there? A. I wasn't there for all of them. Q. Did you indicate in your blog which

ones you were there for?

Page 221

A. I don't -- I think I indicated some of them, I don't recall if I indicated all of them, but someone was there. And blasting someone's house is rude no matter who's there.

Q. But the blog does not indicate whether you were there or not? A. Sometimes. I don't recall if it

indicates every time. I would have to, you know, we're talking about almost two years of blog, I'd have to go back and read every page and every entry.

Q. You, you update your blog every day, don't you? A. Usually. Q. You spend several hours on the blog? A. No. Q. No? A. No. Usually it's about a

five-minute entry. I spend several hours running the web site. The blog is one fraction, one small fraction of the web site.

Q. It's fair to say you've spent five hours a day working on the blog? Or the



Page 222

1 2 web site. Excuse me. 3 A. I'd say it's fair to say three to 4 five hours. 5 Q. Three to five hours depending on the 6 day? 7 A. Depending on the day, depending on 8 what's happening with news, depending on, you 9 know, whether -- on Sundays I spend very

10 little time. On Saturdays I don't spend as 11 much time. 12 Q. What were your hours while you were 13 at the PRC? 14 A. Pretty much the same as Cingular, 15 evening hours. 16 Q. How many blasts did you experience 17 while you were working at the PRC? .8 A. I don't recall.

19 Q. And, again, your blog doesn't 20 indicate whether or not you were present 21 during those blasts? 22 A. Not, not for every one, but I 23 believe that -- you know, again, I'd have to 24 go back and look. I don't recall. .

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Page 224

take pictures of people, places, events that were going on. Sometimes taking pictures of the construction work. I shot a lot of video. After we bought our video camera, which was just before our son was born, I've shot lots of video of the harassment that we endured every day by the excessive noise and construction. By that point I believe all the blasting was done, but there was still a lot of work being done by graders and dozers and other things that were, you know, that were going on that, you know, harassed our, harassed us. I wish that I had the video camera a year earlier. The stuff that I could have captured on tape were -- it's, it is a tapeless camera, on the hard drive rather, would have been very graphic and very bad.

Q. You agree with me that -- strike that.

During the time period I stated, November '06 through August '07, you were, you were basically obsessed with the

25 Q. What were your hours -- well, when 25 1 ___ --"-__________ --'-_'-'--'--'-_--'-____ -+ ____ c-'-o.;...;nc...;;s-'-tru'-'-'-cc;;;;ti_oc..n;;;..P!:2i ect, weren't you?

Page 223

1 2 you left in July to go to South Carolina you 3 were gone until your son was born? 4 A. I was gone until a couple of days 5 before my son was born. 6 Q. SO during that period of time any 7 blasts, if any, your knowledge about those 8 would come solely from your wife? 9 A. Yes.

10 Q. What during -- let's say November 11 '06 through August '07, describe your typical 12 day. 13 A. Get up in the morning, have 14 breakfast, work on the web site, do some, 15 you know, some housework, although, you know, 16 in a big house there's never time to do 17 enough of it, you know, have lunch, go to 18 work, come home. I would at work on my 19 breaks when I worked for Cingular, we had an 20 internet cafe, and so I had the ability to 21 go on line and, you know, find out, okay, 22 this happened. And sometimes I would come 23 home after work and, you know, with the 24 notes that I made work out, you know, work 25 out a story. During the day I'd go out and

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Page 225

A. No. I've never been obsessed. But your client was obsessed with terrorizing my family with the blasting, the grading, the dozing and everything to make a buck at the expense of a family that had nothing to do with your Wal-Mart, nothing to do with your contract, and you had no right to treat us like dirt like you guys did. Q. You made numerous phone calls to the

city during that period of time, didn't you? A. Yes, absolutely, because --Q. And you were --A. -- because your, because your company

was out of control. Q. You made numerous phone calls to CCI

Construction, yes? A. I'm sorry, to TCI Construction? Q. Cleveland Construction. A. I made numerous phone calls to

Cleveland Construction. Q. And you made numerous phone calls

per day to Kanawha Stone; correct? A. Not each day, no. On occasion I

made numerous phone calls.



Page 226

1 2 Q. Numerous phone calls each day? 3 A. Quite frankly, calling --4 No. 5 Quite frankly, calling Kanawha Stone 6 was pretty much a waste of time. You guys 7 didn't give a damn about us. 8 Q. Sir, sir, if your --9 A. I'm answering your question.

10 Q. My question was yes or no. 11 You complained a lot of this noise 12 was in the morning; correct? 13 A. Yes. 14 Q. Did you ever get up and determine 15 whether the noise was coming from your 16 neighbor? 17 A. Yes. _8 Q. How often was it coming from your 19 neighbor? 20 A. Rarely. 21 Q. Rarely. So the noise from your 22 neighbor only came in the afternoon, that's 23 your testimony? 24 A. No, I said the noise from the 25 neighbor for the most part might be one to

Page 227

1 2 two days a week, if it's that. Many times 3 our neighbor is off doing whatever he's 4 doing, I don't follow him to know, and isn't 5 there. And then when he does, when he is 6 there on the occasions that he is, it's 7 usually pretty loud and it's usually pretty, 8 you know, pretty bad. But for the most part 9 our -- you know, it's like, kind of like

10 living with somebody that, you know, works on 11 a barge, they're gone more often than they're 12 home, you know. But the noise from Kanawha 13 Stone and from Cleveland Construction was 14 blatantly out of control. 15 Q. You make, do you make harassing 16 phone calls to your neighbor? 17 A. No. No. After he complained about 18 the weeds, I called him and asked him why he 19 didn't call me and say, you know, and at 20 least come to us and say there's a problem 21 as opposed to going to city council and 22 saying what he did to city council. He 23 didn't like hearing that. 24 MR. KONST ANTY: Sorry, just to 25 clarify. We're talking about the neighbor

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Page 228

next door? What's his name? MR. MULDOON: Kanawha Construction. MR. KONSTANTY: Are you talking

about the construction company or the -BY-MR.WHITE:

Q. What's your neighbor's name? A. I'm talking about John Clay.

MR. KONSTANTY: Okay. Thank you. A. I don't know the phone number, I've

never called. Q. John Clay owns the crane shop next

to you? A. No.

MR. KONSTANTY: No. A. As I was starting to say before you

interrupted me, I don't know the phone number for Kanawha, Kanawha Construction. I wouldn't know how to call them.

Q. Do you own a phone book, sir? A. I'm sorry? Q. Do you own a phone book? A. Probably. Q. You have access to the internet

obviously?

A. Yes. Q. Did you ever attempt to find the

number for the crane company?

Page 229

A. No, because when there was a problem with the crane company they were there, I had no need to call them.

Q. The, the construction --A. All I needed to do was walk to the

fence to talk to them. Q. Wal-Mart construction project has been

good business for Putnam Live, hasn't it? A. Pardon me? Q. The Wal-Mart construction has been

good business for Putnam Live, hasn't it? A. I wouldn't agree with that, no. Q. Didn't give you something to write

about? A. It's given me something to write

about. There are many other things that I could write about, too, and many other things that I did write about.

Remember when phones just rang? Q. During the period, and I think this

is -- we got off on this.



Page 230

1 2 A. I think the Wal-Mart construction has 3 been good business --4 MS. SOLOMON: Let him finish. 5 A. -- for, for Kanawha Stone. 6 Q. Between November '06 and August '07, 7 what was your typical day like? 8 A. I think we already described that. 9 I get up in the morning, work on, have

10 breakfast, work on the web site, shower, 11 change, do the things that people do. 12 Q. And you left off in the middle of 13 the day is why I asked. 14 A. And then I'd go to work, drive to 15 work on the days that I was working in the 16 evening, and the days that I wasn't I would 17 work more on the web site or do other things _8 around the house.

19 Q. What did you do in the evening? 20 A. I would be working at Cingular or 21 PRe. 22 Q. Until7? 23 A. Until 11 on most cases. On 24 Saturdays it was a midday shift. 25 Q. Well, if you got off at 7, what did

Page 231

1 2 you do for the rest of the day? 3 A. Drove home, sometimes go out to 4 dinner with my wife. I have never kept a 5 diary of what I do from the moment that I 6 get up until the moment that I go home or 7 at work or whatever. 8 Q. Do you watch TV? 9 A. Sometimes, not often.

10 Q. What's your favorite TV show? 11 A. The news, Dodger games. I used to 12 watch "Party of Five." There was a show 13 called "Everwood" that I used to watch. You 14 know, "Extreme Home Makeover." You know, I 15 don't watch that -- I probably watch other 1 6 than news maybe an hour of prime time, two 1 7 hours of prime time a week. I don't have 18 time to watch that much, and I'm usually 19 gone during the evenings anyway. During the 20 day I'll watch the noon news, the morning 2 1 news when I get up. 22 Q. Do you have a VCR, DVR, anything of 23 that nature? 24 A. No DVR. We have a handful of VCRs. 25 I'd have to do, I'd have to do -- I'm

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1

guessing three or four VCRs. Q. What do you do with those? A. I rarely record on the VCRs, quite

frankly. The last time I've used them

Page 232

mostly has been to duplicate the footage of what's happened to provide copies to the attorney to give to you. I can't remember the last time I programmed the VCR to tape something. We have, we have one downstairs, we have one in the master bedroom, I have another one. I think we have three VCRs now, and a couple ofDVD players, and I can't remember the last time I watched it, the last time I watched a DVD.

Q. You mentioned in the beginning that you didn't have a camcorder. When did you purchase that?

A. Towards the end of August, shortly before the birth of our son. And I need to clarify that we had one that broke probably a year before that, and we, there was a gap in between the time that we replaced the one that broke before we replaced it and bought a new one.

Page 233

2 Q. You've, you've harassed many of the 3 construction workers with your camcorder, 4 haven't you? 5 A. No. I've documented the harassment 6 that they did to us. 7 Q. You haven't invaded the construction 8 site without, without an invitation? 9 A. No.

10 Q. You've never been on the construction 11 site? 12 A. I have been on the Wal-Mart property 13 after it opened. I went to the office when 14 things first got started to complain and was 15 told to leave, and I never went back to the 16 office. 1 7 Q. Mr. Konstanty earlier mentioned an 18 incident involving Kanawha Stone water truck. 19 It's true that you were harassing that 20 gentleman with your camcorder, weren't you? 21 A. No, I didn't, I didn't --22 Q. It's your testimony here today that 23 you made no statements to that gentleman? 24 A. No. What I said was that I did not 25 have video. The police asked me if I had

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video, and I said I did not. I took digital pictures of him coming at me with a wrench. He was at the back of the truck, I was towards the front of the truck, so I wasn't even within 15 or 20 feet of him.

Q. You were making harassing statements to him, weren't you? A. No. I asked him ifhe was aware

that there was a water shortage in Hurricane, and that they were using a lot of water. And he went off on me and came after me

1 2 3 4 5 6 7 8 9

Page 23 6 ~

i broke rock. I'm not a construction expert, so I don't know the names of all the pieces of equipment.

Q. You did-A. Backhoes. Q. You did about several pieces of

equipment. Cement trucks, delivery trucks. You agree with me those are not all Kanawha Stone vehicles?

A. The cement trucks are not. The

I ~ 11

I ~ ~ ~ I; J ~ ~ M ~

delivery trucks are not. Some of the i with a wrench, which I did not get video of vehicles had Kanawha Stone's logos on the ~ because -- and unfortunately I did not have 14 doors or on the sides of the vehicles. j

10 11 12 13

the camcorder, because the police told me 15 Q. Your blog does not set out what; , that ifI had it on videotape they would 16 noise came from what machinery, does it? ~

i have arrested him, which they should have 1 7 A. I would have to go back and read ~ done even with the digital images. And by 18 the entries. I don't recall. ! the digital, by the digital images you could 19 Q. Do you have -- you don't have any ~ tell that he was coming from the back of the 20 independent recollection of what noise came ~ truck and I was at the front of the truck, 21 from what machinery, do you? II

so I wasn't even within 15 or 20 feet of 22 A. Oh, I've already said. The dozers ;,1

him. 23 -- ~

Q. Do you agree with me that the still 24 Q. No. ~ camera also doesn't record any harassing 2 5 A. -- the things that the things that I

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Page 235 Page 237 ~

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5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

statements you made to him? A. The still-- no, I would disagree,

and I would say the still --Q. The still camera, the still camera

does record those statements? A. Let me finish my statement. You're

harassing me. The still camera does not record any

statements of any type. And your question about record harassing statements is a -- you know, you're tainting the question with your comment. And so I'm not going to come across and walk into --

Q. Sir--A. -- the trap that your trying to set,

SIr.

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10 11 12 13 14 15 16

l ~ ~ did drilling and broke rock. 1-

Q. You don't have any independent 1 a knowledge of what noise came from what 1

vehicles on what days, do you? ~ , A. When you say "independent knowledge," .~

define your question. ~ Q. Do you -- as you -- as we sit here ~

today, can you say that on November 1 st this ~ machinery belonging to this company was I making this noise, on January 2nd this ~

machine belonged to this company was making i this noise? You can't do that, can you? §

A. There's notes in the blog. I don't § recall specifically what date what machine ~ made what noise as we sit here on, what is ~

N 1 7 it, July, July 23rd, 2008. ~

~ Q. Your counsel can help you. 18 Q. Sir, you just agreed with me -- ~

MS. SOLOMON: You didn't make any 19 A. There's no -- g harassing statements. 20 Q. -- that your blog did not -- ~

~,

A. I did not make any harassing 21 A. I'm not done with my answer. Ii ~

statements. 22 Q. You're not answering the question, ~

Q. The noise that you complain of came 23 you're running on. i from what machinery? 2 4 You just agreed with me that the ~ A. The graders, the dozers, things that 25 blog did not indicate which company owned ~

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Page 238

1 2 which machines. Now--3 A. On some days it did. 4 Q. -- is there a reason as you sit 5 here today that you don't want to answer my 6 question? 7 A. I don't recall specifically what 8 dates and what events and what machines made 9 what noise. There are dates and times in

10 the blog, and you're hitting me with loaded 11 questions and you're having a good time doing 12 it, but the bottom line is I don't recall on 13 what specific dates what machines made what 14 noise. Kanawha Stone was out there for 15 nearly a year making excessive noise 16 terrorizing our neighborhood. It doesn't 17 matter whether it comes from a dozer or 1.8 whether it comes from a backhoe, it's 19 excessive noise and it has no place 20 disrupting us in our home and in our yard. 21 Period. 22 Q. But you don't know who did it, do 23 you? 24 A. I know a lot oftimes that Kanawha 25 Stone did it. On other days no, not all

Page 239

1 2 the machines were labeled with the company 3 logo on it, so it's impossible to tell. And 4 I, you know, I can't, if a thing doesn't 5 have a logo on it, you can't -- just like 6 the guy that disrupted us at 4:23 on 7 Thanksgiving morning, didn't have a name on 8 the truck, so I don't know who did it but I 9 know that he did it. And the bottom line

10 is your people were out there making a lot 11 of noise that was completely inappropriate 12 and unnecessary for, to destroy the peace and 13 quiet in our home and in our neighborhood. 14 Q. Sir, answer my question. You don't 15 know it's my people because you don't know 16 who was doing it? 17 A. I know some of it was your people, 18 I don't know that all of it was your people. 19 That's the answer to your question. 20 MR. WIllTE: That's all I have. 21 VIDEOGRAPHER: We're going off the 22 record at 5:42 p.m. 23 (Whereupon, off the video record.) 24 MR. KONSTANTY: Is he going to waive 25 or read?

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Page 240

Mr. Halburn, your attorney should tell you this, but I will. You have a right to read and review this transcript or you can waive that right. We need you to indicate so on the record so that the court reporter knows what to do with the transcript.

THE DEPONENT: I want to read the transcript.

MR. KONSTANTY: Okay. He'll read. (Whereupon, read and sign.) (Whereupon, the Videotaped Deposition

of MARK VANCE HALBURN concluded at 5 :43 p.m.)

Page 241

CERTIFICATE I, Kathryn S. Little, a Notary

Public and Certified Court Reporter, duly commissioned and qualified, do hereby certify that the videotaped deposition of MARK VANCE HALBURN was duly taken by me and before me at the time and place specified in the caption hereof.

I further certify that said proceedings were correctly taken by me in stenotype notes, and reduced to typewriting, and that said transcript is a true record of the testimony given by said witness.

I further certify that I am neither attorney or counsel for, or related to or employed by, any of the parties to the action in which these proceedings were had, and further I am not a relative or employee of any attorney or counsel employed by the parties hereto or financially interested in the action.

Kathryn S. Little, CCR DATE: August 25,2008



Page 242 Page 244

1 1

2 CAPTION 2 DEPOSITION ERRATA SHEET

3 The Deposition of MARK VANCE HALBURN, 3

4 taken in the matter, on the date, and at the 4 RE: Accurate Court Reporting, Inc.

5 time and place set out on the title page 5 Case Caption: DOLORES HALBURN AND MARK HALBURN

6 hereof. 6 VS. CITY OF HURRICANE, WEST VIRGINIA, ET AL

7 It was requested that the deposition 7

8 be taken by the reporter and that same be 8 DEPONENT: MARK VANCE HALBURN

9 reduced to typewritten form. 9 DEPOSITION DATE: July 23, 2008

10 It was agreed by and between counsel 10

11 and the parties that the Deponent will read 11 To the Reporter:

12 and sign the transcript of said deposition. 12 I have read the entire transcript of my

13 13 Deposition taken in the captioned matter or the

14 14 same has been read to me. I request that the

15 15 following changes be entered upon the record for

16 16 the reasons indicated. I have signed my name

17 17 to the Errata Sheet and the appropriate

8 18 Certificate and authorize you to attach both to

19 19 the original transcript.

20 20

21 21

22 22

23 23

24 24

25 25

Page 243 Page 245

1 1 2 CERTIFICATE 2

3 STATE OF 3

4 COUNTY/CITY OF 4

5 Before me, this day, personally 5

6 appeared, MARK VANCE HALBURN, who, being duly 6

7 sworn, states that the foregoing transcript 7

8 ofhislher Deposition, taken in the matter, 8

9 on the date, and at the time and place set 9

10 out on the title page hereof, constitutes a 10

11 true and accurate transcript of said 11

12 deposition. 12

13 13

14 MARK VANCE I-IALBURN 14

15 15

16 SUBSCRIBED and SWORN to before me this 16

17 day of ,2008 in the 17

18 jurisdiction aforesaid. 18

19 19

20 My Commission Expires Notary Public 20

21 21

22 22

23 23 SIGNATURE: DATE: 24 24 MARKVANCEHALBURN

25 25 ,-""I.<""'~l·i:t.~ "'-.l;-'~""'~';""W'.jts'Mt";"""~1.:,.'"~~.~"fS .... ·" ... ,,,~,;f..'i(4"'1 .• ""~~I';~;<iMo~~W,.N~ ;~"'w..u..':"iW..,I';-';:;;'. >l'.'1:1'f"''''':'1':;;''''''',..l:;i.~<,;>.~,.\",;:;'::.<'.'''';':''''''''<>i'''''<~'·'~;''''·:'~'' .,," ",;,~.,"'''''.\''',''''1'.:<!",,,,,.~ ~';/;''''''''A.J.;'<>l~~''''<;';'")-(''''''''''''::''''''~''\ltl.Il<'~~t.'""~il.~;,; ... \",=;;\<.""",\ ...... ~


EXHIBITB

{C0043539.1}

VIDEOTAPED DEPOSITION OF DOLORES JEAN HALBURN,


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 DOLORES JEAN HAL BURN ,

held on July 23, 2008, at the Law Offices of Huddleston

Bolen, LLP, 707 Virginia Street, East, Suite 1300,

Charleston, West Virginia, commencing at 5:50 p.m.,

before Kathryn S. Little, Court Reporter and Notary

Public in and for the State of West Virginia.

JULY 23, 2008

Page 1

fe6a4ec5-8d4a-4eOf-9fdd-d7 eb2b5b 7177

VIDEOTAPED DEPOSITION OF DOLORES JEAN HALBURN, JULY 23, 2008

Page 2

1 1 2 APPEARANCES: 2 3

On behalf of the Plaintiffs: 3

4 LA W OFFICES OF MICHAEL T. CLIFFORD 4 By: Alexandria Solomon, Esquire 5

5 Suite 300 6 The Union Building

6 723 Kanawha Boulevard, East 7

Charleston, WV 25301 8 7 304-720-7660 9 8

10 On behalf of Kanawha Stone Company, Inc.:

9 HUDDLESTON BOLEN, LLP 11

By: Patrick White, Esquire 12 10 707 Virginia Street, East Suite 1300

P.O. Box 3786 13

11 Charleston, WV 25337-3786 14

12 304-344-9869 15 13 16 14

17 15

6 18 17 19 18 20 19 20 21

21 22 22 23 23

24 24 25 25

Page 3

1 1 2 APPEARANCES (CONT'D.): 2 3

On behalf of City of Hurricane 3 4 West Virginia, and Ben Newhouse: 4

PULLIN, FOWLER & FLANAGAN, PLLC 5 5 By: James A. Muldoon, Esquire

6 901 Quarrier Street 6 Charleston, WV 25301 7

304-344-0100 8 7 9 8 On behalf of Cleveland Construction, Inc.:

STEPTOE & JOHNSON, PLLC 10 9 By: Paul A. Konstanty, Esquire 11

Chase Tower, Eighth Floor 12 10 P.O. Box 1588

13 Charleston, WV 25326-1588 11 304-353-8170 14 12 15 13 ALSO PRESENT: 16 14 Mark Vance Halbum 15 Todd Bergstrom, summer clerk 17 16 Donald K. Garrett, Jr., videographer 18 17 19 18 20 19 20 21 21 22 22 23 23 24 24 25 25

Page 4

VIDEOTAPED DEPOSITION OF DELORES JEAN 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

5:50 p.m.

My name is Garrett Reporting Service,

and I am a certified legal video specialist

for Accurate Reporting, Court Reporting. The

address is 24650 Sawmill [sic] Boulevard,

Suite 401, in Punta Gorda, Florida.

The deponent is Dolores Halbum in

the matter of Halbum versus Kanawha Stone

Company, Incorporated. Case Number 07-C-298.

Pending in the Circuit Court of Putnam

County, West Virginia.

The deposition is being taken at

Huddleston Bolen at 707 Virginia Street East,

Suite 1300, in Charleston. The court

reporter is Kathy Little.

Will counsel please identify

yourselves for the record stating your name,

address and whom you represent.

MR. WHITE: Patrick White for

Page 5

Kanawha Stone, 707 Virginia Street, East, Charleston, West Virginia.

MR. MULDOON: Jim Muldoon on behalf of the City of Hurricane and Ben Newhouse. It's 901 Quarrier Street, Charleston, 25301.

MS. SOLOMON: Alexandria Solomon, counsel for the plaintiff. I honestly don't have the address handy with me.

VIDEOGRAPHER: The Notary public and court reporter will stenographically record the testimony today. And at this time will the court reporter please swear in the witness. THEREUPON,

DOLORES JEAN HALBURN, Being first duly sworn testifies as follows:

VIDEOGRAPHER: Thank you. Counsel, you may proceed. MR. WHITE: For the record, also in

attendance is Paul Konstanty on behalf of Cleveland Construction who is out of the room at the moment, and we're going to proceed with his permission.

EXAMINATION

2 (Pages 2 to 5) fe6a4ec5-8d4a-4eOf-9fdd-d7 eb2b5b 7177

VIDEOTAPED DEPOSITION OF DOLORES JEAN HAL BURN , JULY 23, 2008

Page 6

1 2 BY-MR.WHITE: 3 Q. Ms. Halburn, we met briefly a minute 4 ago, but my name is Patrick White, and I 5 represent Kanawha Stone. I'm going to try 6 to make this as quick as possible. I just 7 want to briefly go through your background 8 first. 9 Did you graduate high school?

10 A. Yes. 11 Q. From where? 12 A. Dupont. 13 Q. What year was that? 14 A. 1983. 15 Q. And did you -- do you have any 16 college? 17 A. Yes. ... 8 Q . Where and when? 19 A. West Virginia State University, 2006. 20 Q. What --21 A. Well, actually I have two. One in 22 2002, one in 2006. 23 Q. Same school? 24 A. Yes. I have an associate's and a 25 bachelor's.

Page 7

1 2 Q. What are those in? 3 A. First one is banking finance, second 4 is teaching business education K5 through 5 adult. 6 Q. SO it's a bachelor's, or an 7 associate's in finance and a bachelor's in 8 teaching? 9 A. Yes.

10 Q. Okay. Since -- just kind of want 11 to run through your employment history. 12 What's the first job you had after high 13 school and what was the approximate 14 employment dates? 15 A. Super America, I worked there for, 16 through the summer after high school. And 17 then I went to work for Murphy Mart, I 18 opened the store in Kanawha City. I worked 19 there for about a year, and from there went 20 to McDonough Caperton, worked nine months. 21 And then worked temporary services and got a 22 job at Charleston National Bank, and I was 23 there for 10 years. 24

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

1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

employment that you left in roughly July or August of 'O7?

A. No. Q. No? A. No. I was 10 years -- no, no, no.

After that I went to TSI, which is in Culloden, West Virginia, I worked there for about nine months. I got married, moved to San Diego, and I worked for -- there was a couple of places I worked for. I don't even remember the names, I just know that I ended up at San Diego Opera. I worked there for about nine months, come back here, and worked for Thomas Memorial Hospital. Then went to CASCI, I was there for almost five years. Left there, went to the Department of Education, and then did student teaching, did some substitute teaching and temporary work. Ended up at BB&T for a while, and now I'm -- then went to Goodwill, I was a teacher there. And 'now I'm a teacher for Job Corps, Charleston Job Corps and Allied Business.

Q. During -- from November '06 through the birth of your son, whose employment were

Page

you with? A. Let me think. I left -- I think it

was -- there was some at CASCI and some at the Department of Education. Q. From whom did you take maternity

leave? A. BB&T. That was during construction

also, so it's all kind of runs in there. Q. That's where you got me confused. A. Well, that's what I said, it's been

going on now for a long time, so, I don't know, I'm a little confused, too. I don't think it quite started at CASCI, it more started at the Department of Education. I think that's where I was when we kind of got the word that everything was a go and going to start.

And then I did my student teaching, and I remember the construction was really bad through that whole stint of student : teaching. And then when I -- I got out of ,

\

studendt teaching I guess bin, olet's sbee, b i starte August, Septem er, cto er, Novem er, ,

~ .• :;i;;,,~;r.;.,.t<:\'l~,,:::ii~_;i:.,~_ •• 'ii;i_.ii;ii,= ___ =, ..... _iiii. __ ~_miiii.~, """""iirl'==~!m=;:::"_~";:::; .... m,.~I:ll,!i!.~Ill':,_","~,,m:;:,_ Dirn .... rii:emcemm!iiiib!iiemr_bi!:ecsai;iiuiiii~i!:e""riilI l3!.;!ii. !iil;:~ii:.i~iilOiuii;amtei.1lidi;.';ltahi;ii;ellilmi7IWiith_o~f=m.trn,:tr:l" =,,J Q. Okay. And it was Charleston

25 National Bank Charleston National Bank's 25



Page 10

1 1 2 December of2006. I started doing some 2 3 substitute teaching, I worked temporary 3 4 service and got the job at BB&T. 4 5 Q. Maybe I'll show you this, that will 5 6 help clarify this. I notice you haven't 6 7 been asked to sign a verification. Did you, 7 8 did you assist counsel with the preparation 8 9 of your interrogatories? 9

10 A. Yeah. Well, we wrote them and he 10 11 gave them to him and they tweaked them, and, 11 12 I don't know. Am I missing something? 12 13 Q. I'm going to show you -- 13 14 A. It's very possible. 14 15 Q. I'm going to show you, I'm going to 15 16 show you interrogatory number 2, Kanawha 16 17 Stone's discovery. 17 ~8 A. Well, of course that's wrong, because 18 19 I've left there since then, so we know 19 20 that's wrong. That's temporary service. 20 21 Q. Well, is this start date right for 21 22 BB&T, 4/24/07? Does that -- 22 23 A. That probably is right. 23 24 Q. Okay. 24 25 A. Yeah. That's probably right. 25

Page 11

1 1 2 Q. And then-- 2 3 A. I don't know exact dates, Ijust 3 4 know where I was. 4 5 Q. Okay. And this says United Talent, 5 6 Kanawha County Board of Education, and out 6 7 here there's 12-6-4-24-07? 7 8 A. Okay. That's 12/6 to 4124/07. 8 9 Q. 12 -- 9

10 A. So that was off and on. United 10 11 Talent to Kanawha County Board of Education 11 12 until I started at BB&T on April 24th. 12 13 Q. 12/6 -- 13 14 MS. SOLOMON: Of'06? 14 15 Q. -- '06. 15

~.~ ;

16 A. Okay. 16 17 Q. Is that what that means? 17 18 A. Yes. 18 19 Q. Okay. 19 20 A. Yes. Well, actually, that should 20 21 be, that should be like a 17 or probably 21 22 there or something. 22 23 MS. SOLOMON: December of2006? 23 24 A. December of 2006, yeah. Because I 24 25 didn't graduate until the 17th of December. 25

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Page 12 ! & i.; 1:~

~ But I guess I was working before graduation, ~

because there was a stint between student I teaching and graduation, so -- and before ~

there that was the Department of Ed. i Q. And that means -- ~

~

A. And I had an approved board leave of I absence from them to do my student teaching, i\ but when I was finished to go back? they ~

~ didn't have a job for me. ~

~ Q. And this is, what, can you interpret

I that date? A. 11150f'06. Of ' OS, yeah, because 'J

11

I quit CASCI in November of that year, so it a ~ would be 11, 11 of ' 05 to August of'06. ~

Q. Okay. ~ l~

A. Yeah. And then from August '06 ~

until December I was student teaching. So i that's the difference between those right i there. J Q. But the student teaching isn't on ~

& here? ~

A. I didn't give it to them like that. I Somebody has typed that like that. I had ~' actually gave them a resume. ~ ,

Page 13j Q. Can you see my problem trying to I figure that out? A. Yeah. I gave them a resume with I dates, so I don't know what they've done. ~ Q. All right. So I understand this, I 11106 you were at United Talent, or actually

you would still have been student teaching at that time? ~

A. I would have been student teaching ~ 11/06. I Q. What were your hours student I

teaching? ~ A. I went in like around 7:45 to 3:15,

a ~

I think is what it was. • I Q. 3: 15. Where were you student

teaching? ~ ~

A. St. Albans High School. f Q. How long did it take you to get ~ home? I mean, let me ask you this first. • J

School let out at 3: IS? i A. Yeah. And sometimes I didn't get ~ out until 3:30, 4:00. You know, I don't ~ know. It was different.

O. Okay. .. ~~ 4 (Pages 10 to 13) fe6a4ec5·8d4a-4eOf·9fdd·d7 eb2b5b 7177


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10 11 12 13 14 15 16 17 ~8

19 20 21 22 23 24 25

Page 14 Page

1 A. Depended on what I had to plan for 2 A. I was a teller, a float, and I

the next day. 3 worked at this -- whatever shift they needed Q. And then how long did it take you 4 me to work, wherever they needed me to work.

to get home? 5 I would work Cross Lanes, Kanawha City, both A. From St. Albans to Hurricane is, 6 branches, main bank, they had me in Point

what, 25 minutes maybe, 20 minutes depending 7 Pleasant for two weeks. I mean, I was all on traffic and how you take the, what road 8 over the place. you take, that kind of thing. 9 Q. Was it steady work, were you working

Q. SO a normal day at that point in 10 every day? time you got home around 4:30? 11 A. Oh, yeah. It's full-time benefits, i

A. Yeah. I was usually home by 4, 12 yeah. I only worked one Saturday. I was i 4:15 I think, yeah, unless I stopped 13 off most Saturdays, off Saturdays. I only ~ somewhere. 14 worked one, so -- I worked two, I'm sorry, I i

Q. Okay. Then in December that's when 15 worked two Saturdays. ~ you took the job with United Talent? 16 Q. What -- you agree with me a lot of I

A. And that was sort of 8 to 5 kind of 1 7 banks close their lobbies at 5? ~ thing. 18 A. No. We closed ours -- i Q. That was an 8 to 5 job? 19 Q. I'm trying to get -- i A. Yeah. 20 A. We closed ours -- I worked drive-in ~ Q. Where was that job? 21 most of the time. It was open until 6:30 I " A. Well, it was different jobs. It'sa 22 or 7.

temporary service. But the longest stint I 23 Q. Right. had was with, it was a coal company, United 24 A Depending on what branch I was at ~ Coal Company in Teays Valley, which is like 25 Q: I'm trying, what I'm trying to' i

r-----------~~----~----~-------------+------~----~~------~~~-------------In

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Page 15 Page 1 7 ~ g

10 minutes from my house. I worked until 5:00, so ...

Q. That's me. rapologize. During that pel-iod of time while you

were with United Talent, your shifts were 8 to 5. What time did you normally leave the house?

A. I left the house about 7:30, 7:45, something like that.

Q. 7:30, 7:45? A. Um-hmm. Q. And then you typically returned? A. About 5:15. You always hit that

traffic there in front of Hurricane High School, so it fluctuated.

Q. All right. If I understand what you told me, you were there until April 24th, 2007, or thereabouts?

A. Yeah. Q. At which point then you went to work

atBB&T? A. And that was different shifts. That

was all over the place. Q. Which --,

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

figure out, and maybe you can just help me more here--A. Okay. Q. -- is even though you had different

shifts, banks don't operate a huge window of hours, so what was, what were the different shifts that you would work?

A. I would either work the 7, like 7:30 to 4, I think it was either 4 or 4:30. I can't remember when the lobbies closed. But then on Thursday they were open until 6, so a lot of times I'd work til 6 in the lobby. If I worked the drive-thru, I would come in, either work 10 to 7 or work 9:45 to 6:45, or I could work a day even or I come in at 7:45 leave at 4 or leave at 5:30, 8:30 to 5:30. I mean, they were all over the place. It was just staggered.

Q. You'd agree with me that while, during this period of time you may have left your house different periods of time and you might have returned home at a different period of time?

A. Um-hmm.

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5 (Pages 14 to 17) fe6a4ec5·8d4a-4eOf·9fdd·d7 eb2b5b 7177


Page 18 Page 20 ~ \!

1 1 '1

~ 2 Q. You really were never home during 12 2 while I was home in the evenings. Now, if ~ 3 to 5? 3 it happened between before 4:00 a lot of fl 4 A. Not until July. 4 times, no, I probably didn't hear it because ~ 5 Q. Not until July? 5 I wasn't there, unless I was on vacation or ~

~ 6 A. Um-hmm. Unless I had a day off. 6 sick or there was a holiday or whatever. I I 7 Like if I worked a Saturday, which I only 7 don't even know if -- you know, I'm just ~

8 worked two of them, I would have a day off 8 saying most of my experience with the ~ 9 through the week. Or if I took a day off 9 blasting was done in the evening, and it was ~

~ 10 because I had sick leave and vacation or 10 bad. One time I just, I went to look out ~

~

11 something like that -- II the window and I pulled the curtain back and ~ 12 Q. Do you recall -- 12 it went off just at that moment, and I

, f>

13 A. -- I could do that. 13 swear, I thought I was going to hit the ~ 't

14 Huh? 14 floor it scared me so bad. And it was like n 15 Q. Do you recall taking off during that 15 it rolled like this for about 200 feet. 1

"

16 period of time? 16 I've never seen anything like it in my life, ~

~ 17 A. The first -- oh, sick leave, yeah, 17 and that's the truth. II L8 because I was pregnant. There was a couple 18 Q. You weren't hurt by it, were you? ~ 19 of times I had to stay home. 19 A. Not physically. Emotionally, that's :¥

~ 20 Q. During those. days off, do you have a 20 yet to be decided, but physically, no. ~ 21 specific recollection of blasting activity 21 Q. Are you taking any drugs for your i 22 occurring? 22 emotions? ~

~ 23 A. Most definitely. I have a 23 A. In August after I had the baby, in ~

~

24 remembrance of when I wasn't off and when I 24 September I had an emotional breakdown one ~ I

25 come home they were 7,8:00 at night. There 25 morning because of the noise. I got up and ~ .! 0

Page 19 Page 21 :1 ~

1 1 I 2 was one time it went off, and it's in the 2 I just couldn't take it. It woke the baby

"

3 blog, that I was afraid to look out the 3 up; the baby hadn't been sleeping. Of .~ • 4 window because I swear I thought the hillside 4 course if the baby doesn't sleep, I don't ~ 5 was gone, that's how bad it was. It shook 5 sleep. And I got up and the noise was so I 6 my entire house. My dogs freaked. It was 6 bad that I lost it. I just had an j 7 terrible. I do recall all the blasting that 7 emotional breakdown. The home health nurse

~ 8 I heard, I mean, when I was home. And Art 8 is my witness. She came in, my blood 1 9 King called me and said, Ms. Halburn, we're 9 pressure was through the roof. I called my n

10 going to try to do this before 4:00 every 10 doctor that day. I went in to see him, N

11 day because you're usually gone, your husband 11 it's Dr. John Neville at Dunbar Associates in ~ !

12 has told us your sc,h~dule. And every day 12 Teays Valley, and I told him what we were 1 , , 13 after that it was aft~r 6:00 every day. I 13 going through, and he put me on ! 14 heard it every day after that. 14 antidepressants and blood pressure pills. ~ 15 Did I tell Mark every time? No, I 15 And I told him that I would try them. I f.

" U 16 didn't, because he always reacted to it, and 16 did not like to take pills, I don't. And ., ~ 17 I didn't want to do that. Not that I 17 to think that I have to control my emotions i 18 thought he was in the wrong either. I'm 18 with pills is not something that I'm fond ~

19 just not a confrontational kind of person. 19 of. I tried them for two weeks and I -- ;1

~ 20 I, you know -- and you'll see that I'm not 20 they made me so dizzy I'd stand up and M

21 the one that's making the phone calls and 21 almost pass out on the floor. And I said, i 22 stuff, because he takes care of it. I get 22 you know, this is ridiculous, so I stopped I 23 too upset, I can't do it. My nerves can't 23 taking them. I didn't even finish the ~ 24 take this even. 24 prescription. i 25 But yes the blasting did occur 25 O. How many days after the birth of ~

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Page 22

1 2 your son was this? 3 A. I had him on August the 29th, I'm 4 not sure the date that I went to the doctor. 5 It's in the notes that I gave in my 6 interrogatory. 7 MS. SOLOMON: Is it weeks? 8 THE DEPONli:NT: Huh? 9 MS. SOLOMON: Is it weeks after he

1 0 was born, days, or months? 11 A. Well, it had to be weeks because I 12 had already been in the hospital the second 13 time and came out, because I went back into 14 the hospital for another, what, four days, I 15 think, and came back out, and the home 16 health people were coming into me, so -- and 1 7 they did that for about a month, so, you .8 know. 19 Q. Did your doctor tell you that your 2 0 stress or emotional problem was related to 21 the construction? 22 A. He said that I was under a 16t of, 23 you know, my hormones, he said it was due to 2 4 hormones and stress, is what he said. 25 Q. Did he tell you stress from what?

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. Well, I explaiiJ.ed to him what I was ,",':

going through." Q. A newborn b~.by is very stressful,

isn't it? A. It is very stressful, yes, it is.

But this stuff that was going on across the street surely added to it. It surely was a contributing factor all the way.

I'm not on the pills now or the

Page 23

blood pressure pills, and my blood pressure's been fine, and there's no construction going on, so I don't know.

Q. You were able to stop taking pills cold turkey, weren't you?

A. I did, yes, I did. I didn't like the way any of them made me feel. I have a baby to take care of.

Q. What -- in regard to Kanawha Stone, solely Kanawha Stone, what are your complaints that you've alleged in your complaint?

A. Well, of course it's the same as Mark's, but my majur complaint with everybody is that not one person on, in Kanawha Stone,

Page 24

1 2 Cleveland Construction, City of Hurricane, has 3 ever tried to help us in any way, not one 4 time. If one time somebody would have tried 5 to assist us in some way, we probably 6 wouldn't be sitting here today. I'm sitting 7 here today because two people from the City 8 of Hurricane told me to get a lawyer, that 9 that was the only way I would take care of

10 the situation, and that is why we're sitting 11 here today. 12 Q. Why did you sue Kanawha Stone then? 13 A. Because Kanawha Stone is part of the 14 picture. They provided the blasting and the 15 dirt at my house inside and out. So not 16 only am I taking care of a baby, but I'm 1 7 cleaning up dust all the time. The dust 18 inside my house was just awful, and that was 19 because of all the dust that was being 20 raised by all the blasting and the machines 21 and stuff that was going on across the 22 street. 23 The outside of my house, my lawn 24 furniture is destroyed, it's filthy. There 25 is no cleaning it. I've tried. There's no

Page 25

1 2 cleaning it. Everything is destroyed on the 3 outside. In fact, I cleaned the back porch 4 like three times, it still looks bad. But I 5 cleaned the back porch I don't know how many 6 times. And it's just -- there's plants and 7 bushes in my yard that have died. And, you 8 know, somebody needs to be held accountable 9 for it, I didn't do it.

10 Q. How did you try to clean it? 11 A. How did I try to clean? What, the 12 lawn furniture? 13 Q. Yeah, the deck. 14 A. With detergent, the spray 409. Is 15 that what you clean lawn furniture with? I 16 don't know. I mean, that's what I use, 1 7 that's what I have. 18 Q. Did you use a rag, brush? 19 A. Yes. Yes. 20 Q. Did you try hosing it down? 21 A. No. A hose doesn't work. 22 Q. Hose doesn't work to clean it or 2 3 your hose at the house doesn't work? 24 A. No, our hose doesn't work. It's not 25 -- right we don't have it hooked up right.



Page 26 Page 28 >

t 1 1 ~ 2 It's not right In fact, what happened is 2 MR. KONST ANTY: Let me just ~ 3 we left it out and it froze and busted, and 3 interpose an objection to counsel's continued I 4 I haven't replaced it I mean, I figure 4 assistance with answering questions. i 5 why, why bother. 56 MR. WHITE: I agree, I second that i 6 Q. I bet Wal-Mart sells those. Q. But moving on. So blasting after 6, I 7 A. I'm sure they do, but I -- you can 7 dust, and that's it, and the fact that ~ 8 put this on record, I've never stopped foot 8 nobody came out to help you? ~ 9 in that store and never will, so don't worry 9 A. I guess. I mean, if you want to 1

10 about that. 10 belittle it that much, that's fine, but -- ~ 11 Q. SO dust is your main complaint? 11 Q. Do you agree -- I. 12 A. Dust, noise, and the fact that they 12 A. -- you have to live it to understand 'j

13 scared me to death. My dogs are nervous. 13 what we went through. You're making it ~ 14 My little one pees in the floor all the 14 sound very small but it was very big. But I 15 time. They're nervous all -- if they hear 15 if that's how you need to put it, then, " i: 16 the least little thing; they're going off. 16 okay. ~ 178 And they didn't used to be that way. 1178 __ Q. But you agree with me that Art King ~.'l _ MS. SOLOMON: Stress. 4

~ 19 A. It's just stress. It's stress of 19 A. I did not, I did not have physical ~

2 0 being in a situation that I can't control, 20 -- i 21 and that's what stress is all about, and we 21 Q. -- did come out and speak with you? ~

i1 22 can't control this. 22 A. -- damages. J

~ 23 Had he blasted before 4:00, maybe 23 My body was not hmi. Okay? B

24 you wouldn't be sitting here, like he said 24 Mentally and emotionally, yes. My outside of I 1_2 __ 5 ___ h_e_w __ o_ul_d_._I_d_o_n_'t_kn __ o_w_._B __ ut_t_h_e_f:_a_ct_i_s ________ -r_2_5 ___ m~y_h_o_u_se __ is_ru __ in_e_d_._I_h_a_v_e_n_o_d_e_s_ir_e_t_o ________ ~~

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

Page 27

he told me that he would blast before 4 and he never did, it was after 6:00 every day after that Q. He never blasted before, that's your

testimony? A. I don't know, I wasn't home. But

the days that I was home after 6:00 he blast, there was blasts, and there weren't supposed to be.

Q. Do you have','any evidence that blasts occurred after 6: OO? A. Probably on their records. I'm sure

they have a record of when they blasted and the times they blasted.

Q. Do you have any? A. Do I have a record? No, I did not

document the blasting. MS. SOLOMON: Your memory? THE DEPONENT: Huh? MS. SOLOMON: Your memory is

evidence. A. My memory is all I need and Mark's

blog. I mean, I told him a couple of times, but like I said I didn't. ..

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

Page 29 .~ !

fix the outside of my house. I mean, I have no joy in my home anymore, and I had a lot of joy in my home. You know, I mean, that's the kind of stuff that Kanawha Stone helped to take away from us. You didn't do it alone, but you sure contributed to it. And that's where we're at here today.

Q. What about the outside of your house do you allege was destroyed? A. It's just, it just doesn't look like

the same place. It's dirty-looking. Q. Have you tried to clean the outside

of your house? A. Why should I? I didn't do it. Why

should I clean? No, I have not. No, I have not. I cut my grass, that's what I do.

Q. Were you present for the conversation your husband had with Mr. King? A. No. I think it was by phone. I

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wasn't present, no. I was just -- when he called me, he said, I spoke with your husband, and he expressed that you're home, you're pregnant and you're home in the ~

.u )~'""<-.. ~

8 (Pages 26 to 29) fe6a4ec5-8d4a-4eOf-9fdd·d7 eb2b5b 7177


Page 30

1 2 evening, so we're going to try to get the 3 blasting done before 4:00. And he was very 4 nice. And I said, I truly appreciate that, 5 I said, I really do.l;3ut it never once 6 happened, that I know of. I mean, it always 7 happened after 4, so I don't know. When I 8 heard it, it was after 4:00. So--9 Q. But of every one, Mr. King did make lOan attempt to try to help you? 11 A. Well, he said he was going to help 12 me, he didn't do it. He didn't make an 13 attempt, he just tried to keep me quiet for 14 a while just to get Mark off his back 15 probably. 1 6 Q. But you don't know the number of 1 7 blasts that occUlTed while you were gone, do .,.8 you? 19 A. Not where you could ask am I going 20 to say 5, 10, 15, no, I can't. I do not 21 know, no. Like I said, I didn't write 2 2 things down. I wish I would have, but I 23 didn't. 2 4 Q. Well, you couldn't have, you weren't 25 there, could you?

Page 31

1 2 A. Not before 4. I

3 Q. Right. So you -- there's no way 4 you have any knowledge of what Kanawha Stone 5 did for you prior to 4:00? 6 A. Unless I was home --7 Q. You would have no idea? 8 A. -- for any reason. 9 Um-hmm.

10 Q. You bought this house with your 11 mother? 12 A. Yes. 13 Q. What year? 14 A. 1992. 15 Q. And you paid $40,000 for the house? 16 A. Yes. It was three apartments. I 1 7 turned it into one house. I've remodeled 18 almost the entire thing. 19 Q. You lived there alone? 20 A. No. My mot~er lived with me. It 21 was when I was single. 2 2 Q. When did your mother move out? 23 A. Well, my mom hasn't necessarily moved 24 out. She has two homes. She lives with --2 5 she has her own room and everything at my

Page 32

1 2 house. But she left. Her and her --3 because they go to church and stuff in 4 Charleston, and her sister got a house in 5 Charleston, so Mom stays there or she comes 6 to my house. 7 She's actually my baby-sitter now, 8 she goes back and forth. But, I don't know, 9 we came back in 2000, and I think they might

10 have been there maybe six months. I have no 11 idea when she went to Charleston. But she 12 still gets her mail at my house and 13 everything, I mean, she sti1llives there. 14 Q. Right. Your husband testified that 15 at this point your mortgage is, what, 16 $115,000? 17 A. Yeah, about, yeah, 115. We 18 refinished 116, and the appraisal was 145, I 19 think, or 149. It wasn't 175, he was 2 0 mistaken there. 21 Q. Okay. When was -- strike that. 22 I think your husband said that there 2 3 had been two refi's? 24 A. Yes, we did, we did two. 25 Q. When was--

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

Page 33

A. I don't remember the dates. Q. There--A. It seemed like there was one in 2000

and --MS. SOLOMON: Let him finish his

question. THE DEPONENT: Oh, okay. I'm sorry.

Q. Ballpark when was the first one? A. Let's see. We came back in 2000,

we refinanced maybe 2003 or 2002, and then we did it again in 2005. I don't know. I honestly don't know the dates. I'd have to really research that. I honestly don't know. All I know is that they were both done before the Wal-Mart announcement, but I don't know when they fell. And I don't even remember the first one, how much it was or why we did it, I can't even remember. But I'm sure it was -- we might have done the upstairs with the first refinance. I can't remember.

Q. Is your husband on either of those

A. No.



Page 34 Page 36 * ~

1 1 ~ II :it

2 Q. -- second mortgages? 2 hearing. Like I said, I think they do " ~ 3 A. No. He's not on the deed. 3 maintenance on them over there, because it's ~ 4 Q. What -- 4 just a holding yard. I 5 A. He did sign a right to rescind 5 Q. Do you know that or is that just 6 because he lives there, but that's all. 6 you speculating? ; 7 Q. What percent of the mortgage payment 7 A. Well, I don't see them building ~ 8 does your mother make? 8 anything over there, so I'm assuming he just ~

~

9 A. My mother doesn't make, pay the 9 puts the machinery there. i 10 mortgage. Now, when I lived in San Diego 10 Q. He has a garage, doesn't he? ~ i 11 she did and before then, but we don't make 11 A. He's got a huge garage. i 12 her pay. I mean, she doesn't pay. 12 Q. Have you been inside the garage? ~

" 15

13 Q. You've been bothered by the noise 13 A. But that crane's not going in the ~ "~

14 from your neighbo~',s crane company as well, 14 garage, it's too big. • ~

15 haven't you? - . 15 Q. Have you been inside the garage? ~ I

16 A. Yeah. In the,morning is when it's 16 A. No. Never been on his property. ~ $

17 bad, when they really get -- and that's been 17 Q. SO you don't know whether he j;

i 18 since I bought the house. That was before 18 attempts to repair vehicles inside that ~l

19 Mark even. Just, like I said, I'm not a 19 garage? Ii

~ 20 confrontational person. 20 A. No. Actually, I've never seen those M

~ ~

21 Q. That's almost a -- 21 doors open, if you want to know the truth, 1(

~ 22 A. I don't even know the man. 22 now that you said that. I cannot tell you I 23 Q. That's -- 23 what time I've ever seen it open. Not to • 24 A. I don't, I don't, I don't want 24 say it isn't, I'm just saying I've never & ., 25 anything to do with him. 25 seen his garage doors open. He's always ~

37 ~ Page 35 Page ~

1 1 U ~

2 Q. That's almost on a daily basis him 2 worked on it outside. ~ 3 running his shop, isn't it? 3 Q. He starts early, too, doesn't he, ij , 4 A. No, no, not necessarily. When they 4 6:00? ~ 5 are over there, they might be over there for 5 A. Yeah, there's been -- he sometimes ~

'i '"

6 like a week at a time. And I don't know 6 gets pretty early. ~ 7 if they do maintenance over there or what, 7 Q. During the -- ~ 8 but they'll just run the crane and just run 8 A. His will be on weird days, too, like ~ 9 it for like hours, and it's just the most 9 a Saturday morning or a -- you know what I'm :~

~ 10 annoying noise you've ever heard in your 10 saying? It's not like it's -- I guess they rl • 11 life. And it's right,there on the side of 11 take -- they're working where else during the

~ ·s ~

12 our bedroom. You 'know, there's just a small 12 week, and then on Saturday they come back ~ ~

13 room between our bedroom and where they're 13 and do their thing. Because I'm usually up ~l '\

14 at, so it's very very loud. And I used to, 14 early, so, you know, it's Mark that was i 15 in Mark's office, which is beside our 15 working late at night and having to tly to , 16 bedroom, used to be a room that I used to 16 sleep with everything going on around him. ~\ 17 sleep in, so I really caught it a lot, you 17 Q. What work did you do to the exterior

1-~.

18 know, in previous years. But, yeah, when he 18 of your house? ~ 19 runs it, it's annoying, it's very annoying. 19 A. I put siding on it, new windows, ~ 20 Q. And he has trucks in addition to the 20 doors, roof, downspouts, soffit, you name it. ~ 21 crane and other pieces of heavy equipment? 21 Q. Were you there while they reshingled

~ I

22 A. I have no idea what he has over 22 your roof? 23 there. I know that he drives a big truck, 23 A. Yeah. 24 but I don't know if that's what I hear. 24 Q. Did any neighbors complain when you 25 All I hear is -- it's the crane is what I'm 25 reshingled your roof?

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Page 38 Page 40' II 1 1 ~ 2 A. He had a comment about the people 2 A. A little mound of dirt? There's I 3 that were on my roof because he's racist, 3 been all kinds oflittle mounds of dirt I 4 but other than thatthat's all. 4 left. I don't know -- ! 5 Q. Your husband? 5 Q. Do you agree -- ~ 6 A. No. My husband wasn't anywhere near 6 A. -- which one you're talking about. ~ 7 us when -- I didn't know him when I roofed 7 Q. Let me ask, ask you this. Would ~ 8 the house. I bought it in '92. 8 you agree with methat the last part of the ~ 9 Q. I don't know who "he" is, that's why 9 mountain that was removed was a section of n

1 0 I was asking. 1 0 the mountain that was closest to your house? ~ 11 A. My neighbor, you said my neighbor, 11 A. There was a piece of dirt across the ! 12 asked if he complained any, I said only 12 street, is that what you're talking about? ,~ 13 about the people on my roof. 13 There was some dirt, a mound of dirt, yeah, J 14 Q. Did any neighbors complain, not just 11 45 there was, J,:",

15 the guy next to you? Q, And for a good while you couldn't i 16 A. Okay. No, nobody, not that I know 16 see the construction as a result of this ~ 1 7 of. They weren't loud. They drove a nail 1 7 mound? ~ _ 8 with one smack, it wasn't like -- I don't 18 A. Oh, see, we're not talking about the I 19 know if you've ever seen real roofers, but 19 same mound. I don't know what you're m

2 0 they know what they're doing. They weren't 20 talking about. I don't, I don't understand ~ 21 loud. 21 what you're asking. ~ i 22 Q. I think you sort of answered this 22 MR. WHITE: Well, I think that's all ~ 23 earlier, but did YOl.I:icver make any 23 the questions I have for now. Thank you for j 24 complaints?" 24 your attention. ~

1-2_5 __ .::..A.::..' _O~n_w.::..h...:.o":"?_,,,,,;:w-__________ 1-2_5 ___ .::..M....:R:..::. . ...:.K...:.O.::..N..::....:.S....;.T..:..AN...:..-T_Y.::..:",-",-C_an_I _si_t"'-h..:..er.::..e_? ___ -I~ Page 39

1 2 Q. On Kanawha Stone. 3 A. I've never, no, physically I have 4 never made the complaints. 5 Q. Is that with respect to Kanawha 6 Stone or is that with respect to everyone? 7 A. Every -- well, no, I can't say 8 everyone, because I did attend a city council 9 meeting and I wrote the PCDA, so, I don't--

10 and I've called this Councilman Call, 11 Councilwoman Call. Lana Call, I think her 12 name -- I'm not sure what her name, first 13 name is. But I've called Ben Newhouse on a 14 couple of times and I called Mayor Peak, he 15 never returned my call, neither did Newhouse 16 either, but that's beside the point. I 17 mean, to my, to what I can remember that's 18 all I've done. I did'n\ call Kanawha Stone 19 or anything. 20 Q. Do you remember a little mound of 21 dirt on the construction site that was left 22 closest to your home? 23 A. Oh, my gosh. Do you mean --24 Q. By a little mound of dirt, I mean 25

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

,~ Page 41 /;

VIDEOGRAPHER: Yeah. MR. KONST ANTY: Can we keep going?

Let's forge ahead. THE DEPONENT: Thank you. EXAMINATION

~ j

* ~ l, Ii

~ ~

~ ~

Q. My name's Paul Konstanty. I ! represent Cleveland Construction. You've been I!

BY-MR.KONSTANTY:

~ here for your husband's deposition. I assume ~ " you know how this works. If you don't ~

understand a question that I've asked, just I let me know, I'll rephrase it. I

And I have just a very few questions j for you, ma'am. I heard you testify, Mr. ~ White asked you some questions about your g medical condition and your health, and you ~ talked about your nerves a little bit. The ~

~ comment that I heard you make, and I wrote i it down, it was it's yet to be decided. !

~ What is yet to be decided? t

A. I just -- I don't know. My nerves, are shot over all this, through this process, ~ what's happened, going through all this. You ~ know I don't know. I get really nervous. ~

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Page 42 Page 44 Ii ~

1 1 ~ "

2 I know for two wee!<:s after the arrest I had 2 this question. I mean, is that who you ~ ~

3 panic attacks. I didh't go have them 3 refinanced with or did they then subsequently ~ 4 checked because I just, I found out I was 4 buy the mortgage and that's who now you pay? ~ 5 pregnant, there's nothing they could do 5 A. You know, I did it on line, and I l 6 anyway. I would never take anything while I 6 don't -- I think Wells Fargo is who I ~

7 was pregnant anyway. But this has been very 7 refinanced with. I honestly don't remember. ~ 'l ~

8 emotional for me. Being here today is very 8 Q. Do you have any of the paperwork ~

!. 9 emotional for me. 9 still? ~ 10 Q. Do you, do you have an appointment 10 A. Probably somewhere. I don't know. ~ 11 with anyone? 11 Q. Specifically the appraisal? ~ 'I

€ 12 A. No, I don't. There's no future 12 A. Yeah, I have a copy of -- I think J

" 13 plans to go and see a psychiatrist. 13 Mike may have a copy of the appraisal. I'm ;~ ~ 14 Q. SO I'm still not clear what's -- 14 not sure if I gave that to him or not. I 4

15 A. It's just, you know, it's just 15 have it in a file if I didn't give it to ~ i 16 everything. 16 him. ~

~ 17 Q. I'm sorry. 17 Q. Mr. Clifford? :J ]

18 What's yet to be decided, then? 18 A. Um-hmm. It's Frank Dorsey from I 19 Just I don't understand what you mean by 19 Associate Appraisers is the one who did it. 20 that. 20 Q. Okay. Let me just ask you, if you ! 21 A. Well, it's just that with everything 21 don't have an objection, that if Mr. Clifford 22 we've been through,and with the couple of 22 doesn't yet have that appraisal and you have '~

23 things that we have Jaken to trial that 23 it at home, if you would provide it to him, I 24 hasn't worked and\iie can't sell our house 24 and in tum, ma'am, if you could -- ~

'l.

fl 25 and now we're going through all of this, and 25 A. Sure. ~ \1

Page 43 Page 45 11 R ~

1 1 I 2 depending on the outcome of all of this, I 2 Q. -- make copies of all that for us, 3 don't know what the future holds for me. I 3 I would appreciate it. ~

~ 4 mean, I'm at my emotional break. You know 4 A. Sure. I'll be glad to. I know .~

!)

5 what I mean? I'm at my limit with 5 since then I've tried to get the house ~ \; '6 everything. 6 appraised and I can't. ~ 7 So I just want closure, and I want 7 Q. Why not? ~ 8 this -- I want to raise my son in a nice 8 A. They tell me it's not worth anything ~ 9 place and get past all this, get on with our 9 residential, they'd have to do it as a ~

~ 10 lives. We haven't been -- we were working 10 commercial appraisal. i 11 steadily fixing up the house. I need 11 Q. Who's -- i 12 furniture, I won't buy -- I haven't done 12 A. That's what they told me. ~ 13 anything. You know, my life has been put on 13 Q. Who told you that?

~ j ~

14 hold for two years, and I'm ready to stop 14 A. Tom Michaels and Franky. ~ ~

15 all this and get on with life. 15 Q. Tom Michaels? , , ,

16 Q. And for you closure, for you and 16 A. Um-hmm. ~ 17 your husband, would be to sell the house and 17 Q. And who was the second one? ~

" 18 move somewhere else? 18 A. Frank Dorsey.

:1 .,

f 19 A. Exactly. 19 Q. Okay. 20 Q. Do you remember the name of the bank 20 A. That now its use, that that's not , 21 that you did the last refinance with? 21 what it should be used for. It's now in a 22 A. Wells Fargo is who I have it with 22 commercial zone and it should be commercially 1

l 23 now, I think that's who I write the check 23 appraised because it actually should be i 24 to, Wells Fargo. Yeah. 24 commercial property. There would be no way ~ 25 Q. Well and I should have asked you 25 that they could find comps anywhere across I~

to ,w.:.w .. ;....,."¢.,, .... ,,~w.c.,,~ ~ lJoI:I ........ "' .. ,......". • .:l'~~,. • '~ ... ;);l .... -'>.~JJt>:"'·';."'.:-4W~W.~ .... "''N .. '''v''''IIY~.~'''''''*::t·iN''''' ... ''·.., .... ,~.-.;.w:>."'-~ s=<:o:t' '"'"""».....r"""1J< • .:...;' .. """'I#<Q,'<,'\: , . 12 (Pages 42 to 45)

fe6a4ec5-8d4a-4eOf-9fdd-d7 eb2b5b 7177

VIDEOTAPED DEPOSITION OF DOLORES JEAN HALBURN,JULY 23, 2008

Page 46

1 1 2 the street from a major super center within 2 3 a certain mile radius like they have to have 3 4 for an appraisal. You know, it would be 4 5 almost impossible for them to do that. 5 6 Q. Have you ever been offered any money 6 7 for your house? 7 8 A. I have never 9,een offered anything, 8 9 no. ., 9

10 Q. Do you know whether anyone's offered 10 11 your husband money for the house? 11 12 A. Mark said that one time that he was 12 13 having a discussion with Scott Edwards and he 13 14 offered 100, or he asked for pre-Wal-Mart 14 15 plus 10 percent. But that was never brought 15 16 to me in writing, verbally, nothing, and I'm 16 17 the homeowner. 17 • 8 Q . Sure. And that would have been in 18 19 your estimation, what, 100 -- 19 20 A. What, 149 plus 10 percent is, what, 20 21 160? 21 22 Q. Right, somewhere -- 22 23 A. 155, something like that. 23 24 Q. Did you have any specific interaction 24 25 with anyone from Cleveland Construction? 25

Page 47

1 1 2 A. No. 2 3 Q. Telephone ot'otherwise? 3 4 A. Not that I rec,8'll. I didn't call 4 5 anybody, unless th~y called the house looking 5 6 for Mark or something. Other than that I 6 7 wouldn't have, no. No. 7 8 Q. And the letter that you referenced 8 9 earlier to the PCDA, did you, you wrote 9

10 that? 10 11 A. Yes, I did. 11 12 Q. The physical damage to the exterior 12 13 of the home that you described, Mr. White 13 14 was asking you questions, was a result of 14 15 dust and debris? 15 16 A. Dust and dili, yeah. It was just, 16 17 the car would be covered, the inside of the 17 18 house was constantly -- and I -- and we've 18 19 lived like hermits, I'm not kidding, for two 19 20 years. Every window, every door, every 20 21 curtain has been shut in my house. My child 21 22 doesn't even know what sunlight is at my 22 23 house, because we keep it all shut. We 23 24 don't ... 24 25 Q. And has that 'has that stopped now 25

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Page 48

" i that the construction is over? ~ ~

A. Uh-uh. Now I'm on display. No. 1. ~

We stay in my house. 'I Q. I'm sorry, I should have made the ~ •

~ question clearer. The dirt and debris, that, ~

that has ended? ~ §

A. Yeah. They've paved it, yeah. i Q. Have you made any inquiry or !

investigation into someone that cleans houses ~ that -- you have vinyl siding? * 1 A. Yes. ~

Q. How much that would cost to have ,~ "

your -- I A. No, I have not. 0

Q. -- your house cleaned? ~ « A. Uh-uh. I don't want to spend r~

'I

another dime on the house, if you want to ~ ~

know the truth. ~

Q. You're aware that there are people ~ ~ out there that do that sort of thing? U

A. I'm sure there are, with a good ~ penny to do it, and I don't have it. So ~ ,

~ -- ~ Q. You don't reall~ know how much it ~

..f,

Page 49 .~ ~ f, , I.~

costs, I think that's fair? Q

~ A. More than 50 bucks is too much for 1

Ii ,.;

me right now, so ... fi It's not only that, if, if! do get ~

a buyer, my house is worth absolutely not a ~ ~~

penny more now than it will be if! fixed Il :,

it. It doesn't matter. My house would be ::j, 'I~

~ tom down if it's going to be sold as

~ commercial, so why would I spend a dime on it. That's where we've been, we've been in l

j a holding pattern for two years now. ;~

And Tom also told me that, or it t~ ~ might have been David Bledsoe, one of the -- 1

either the Realtor or Tom Michaels, I can't ;: .x

remember at the moment, told me that my ~ J

house was probably worth half what it was t! t;

before the Wal-Mart now as residential ~ 1 property. I don't necessarily know if I ~ r agree with it, but I'm just telling you what :1 ,

~ they told me. ~t

~ Q. Sure. , k

Do you have specific complaints other u

than what maybe your husband shared with us? ~ ~ ~ I mean, do you have --

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13 (Pages 46 to 49) fe6a4ec5-8d4a-4eOf-9fdd-d7eb2b5b7177


Page 50 Page 52 ~ l?

1 1 1, ~

2 A. I do. 2 was moved. We hired Mike Hall and John ~ I 3 Q. -- anything to add -- 3 Deitz right off the bat because we wanted

"t :Y

4 MS. SOLOMON: Let him finish. 4 out of there. l 5 A. There was something that Mark really 5 Q. Who was that? h

~, 6 missed. 6 A. Mike Hall and John Deitz, and the ~ 7 MS. SOLOMON: I was just going to 7 name of their company leaves me at the ~ 8 say let him finish his question. 8 moment. It's in Teays Valley, though. And ~ 9 THE DEPONENT: I'm sorry, I'm sorry. 9 he's a -- i

10 Sorry. 10 MR. HALBURN: Wood Buying. ~ ~ 11 A. Were you finished? 11 A. Yeah, Wood Buying Properties. And 1

12 Q. -- as it relates to my client? 12 Mike Hall is actually in politics. I don't j Q

13 A. Yes. The major issue, before the 13 really know what he does. 1. ~ 14 actual access was put into the Wal-Mart, we 14 And I was told I have the best 1

15 had people wanting our property, but they 15 piece of property up there, that I was eye ~ 16 were on standby be9ause nobody would 16 level with the Wal-Mart, that's what I was i 1.7 communicate, not Cleveland Construction, not 17 told. And that you hold onto your property, j

.L8 the City of Hurricane, neither one would 18 it will be worth a lot of money, blah, blah, ~ 19 communicate with anybody on the plans of how 19 blah. We put it on the market, and nobody I 20 they were going to put the access into that 20 could do anything because they had to wait. ~

~ 21 Wal-Mart. So we had Krispy Kreme was 21 First they wanted to make sure that the deal I 22 looking at us. I don't know, there were 22 was going to go through. Then after it went i 23 several different places. And they all said 23 through then it's, well, we have to see how 24 we have to see what the Wal-Mart is going to 24 they're going to put the access in. Well, ~ 25 do. Well, we were under the assumption the 25 then when they started digging down I told ~

~

i1 Page 51 Page 53 ¥

~ 1 1

B II

2 entire time that they were going to build 2 Mark immediately, I said, This is not good. ~ , 3 just like Nitro, you have Lowe's on one 3 I said, Our right of way isn't wide enough. ~

~ 4 side, you have the road in the middle, you 4 And it's exactly what David Bledsoe told me I

I' 5 have the Wal-Mart on the other. 5 when he had it listed. You have to have a E g 6 No, what did they do? They proved, 6 certain footage right of way, and I think ~

~ 7 they come in and dig down 12 feet probably 7 ours is only like 18 feet or you have to t 8 below my property value and eliminated my 8 have 18 feet and we only had 11. I don't ~ 9 ability to sell my house. I now have to 9 know what it was. But anyway, I don't know

, ~

10 work with the two 'people on each side of me 10 what the zoning policy is on that. ~ 11 to sell my house. And let me tell you, 11 MR. KONST ANTY: Those are all the a

<,

questions I have for you. Thanks for your ~ 12 that's not an easy thing. And now I have 12 J 13 to wait and a deal has to be made for the 13 time today. ~ 14 entire hillside before I can sell my house. 14 THE DEPONENT: Thank you. ~ 15 So I'm stuck. And it's all because -- and 15 MR. KONSTANTY: I'll switch seats

:.\ >' l~

16 Cleveland Construction had a big part in 16 here. ~ 17 that. They're designer, they're the ones 17 EXAMINATION l

%

18 that put it in. City of Hurricane approved 18 BY-MR.MDLDOON: lj :1

19 it. 19 Q. Hello, Mrs. Halbum. • ~

20 So that's my biggest gripe with 20 A. Hi. ~ :1

21 Cleveland Construction is that they put the 21 Q. My name is Jim Muldoon. And I have I 22 road in like they did and they have 22 a few more questions to ask. 23 eliminated my possibility of selling my home 23 A. Okay.

~ 24 and getting out of there, which is what we 24 Q. I know I, we use the term "few," so a 25 wanted to do before the first piece of dirt 25 we could be here for a while. No.

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fe6a4ecS-Sd4a-4eOf-9fdd-d7 eb2bSb 7177


Page 54

1 1 2 In your response to a question that 2 3 Mr. White talked to you about, you said that 3 4 some folks from the City of Hurricane, I 4 5 think you said two people from the City of 5 6 Hurricane told youto get a lawyer. 6 7 A. Um-hmm. 7 8 Q. Who are they? 8 9 A. Lana Hall or Call. 9

10 Q. Who's that again? I'm sorry. 10 11 A. Scott Edwards and Councilman Call or 11 12 Hall. It's the lady. I don't know their 12 13 names. I'm not good with the names. 13 14 Q. When did they, when did they give 14 15 you that-- 15 16 A. That was on -- Lana or Lana or 16 1_ 7 Lanna or whatever, that was on July 3rd. 17 1..8 That was the morning that I called her when 18 19 they were across the street on July 4th. 19 20 I'm sorry, it was July 4th. And then Scott 20 21 Edwards was during a city council meeting. 21 22 Q. SO that was 2007? 22 23 A. Yes. Yes. And I told them both, I 23 24 said, I don't have the money to hire a 24 25 lawyer. 25

Page 55

1 :

1 2 Q. I believe it's y<:mr testimony you 2 3 purchased your home in, is it 1992 with your 3 4 mother? 4 5 A. September of'92. 5 6 Q. When you purchased your home, did 6 7 you realize that it was commercial property? 7 8 A. It wasn't on my, on the paperwork 8 9 that I had. It showed, well, for tax 9

10 purposes it showed that it was rental, and 10 11 then, of course, it went over to residential. 11 12 But as far as zoning, no, it did not. No 12 13 one ever told me that it was zoned 13 14 commercial. 14 15 Q. You were adjacent to a crane 15 16 company, though, weren't you, at that time? 16 17 A. Yeah, but it was -- honestly, nobody 17 18 told me. I didn't think -- and I even, you 18 19 know, worked in the department where the 19 20 loan, the loan papers were created, because I 20 21 first got my loan through Charleston National 21 22 where I worked. 22 23 Q. When you-- 23 24 A. But it wasn't.. , 24 25 O. When you purchased your home back in 25 ~.,~ ~ .~<i,~"" ... \\\1. ... ,,~

Page 56 ~ ~ ;~ \I

'92, did you ever get assurances from anyone j §

from the City of Hurricane that there ! II

" wouldn't be development by your property? ij A. No. ~

r~ Q. At any time have you ever received

I assurances from the City of Hurricane that there wouldn't be development by your property? ~

~ A. No. ~ Q. I believe you testified that you did n attend a city council meeting? ~

f A. Yes, in July 2007. ~ Q. Was it just one meeting? ~

A. Just one. ~ Q. What happened at that meeting? U

(, g A. I was pregnant at the time. I was :j

II so upset I couldn't go back. m

Q. Why were you upset? ~ A. Just the whole process. Listening i

to Scott Edwards just upset me, and Ben ~ ~ Newhouse. a

Q. What did they say? ~ ~ A. Just, you know, I went up there and 1

I gave my whole spiel, and I could just tell __ ... _. _____ ~ ."

Page 57 ~ ~ ~

I that he could care less about me. And he I just -- I said -- he said, We'll see what ~ , we can do about it, and, you know, We'll

:".

;/ enforce, see about enforcing the noise

;, ~".

~ ordinance. And they didn't do anything. So I I guess I fall in the category with John i1

~ Clay, why bother. u He said that he would take it up ~

with the committee. To my knowledge, it was !! ,~

never taken up with the committee in a city 1 council meeting. ~

Q. SO you have no knowledge whether it ~ was or was not taken up? ti

A. No. If it was, we would have been I told about it, because we always have

~ ~

somebody that attends the meetings that i reports back to Mark, but to our knowledge, i no. i Q. And you're unaware if it was taken ~

\1

up at an executive session? I ~

A. Right, I'm unaware. ~

~ Q. We heard, well, you sat through , your, your husband's testimony about his ~ concerns and gripes with the City of II

, -' .~~A~A{~&"~""':Q!:;.I:j~f<W,>,

15 (Pages 54 to 57) fe6a4ec5·8d4a-4eOf·9fdd·d7 eb2b5b 7177


Page 58

1 1 2 Hurricane and Ben Newhouse. I want to get 2 3 your, your opinions or your concerns. 3 4 A. Well, like I told him, they're all 4 5 the same. I've called Ben Newhouse, I 5 6 called him twice, I only called him twice, 6 7 and he never returned my calls. Same way 7 8 with Rick, Mayor Peak. I mean, my, my gripe 8 9 is the same thing. I mean, they did harass 9

10 me. They showed up at my house, gave me 48 10 11 hours to clean off a hillside. And I asked 11 12 him, I said, Is this just the weeds on top 12 13 of the hill or do I have to go clear to 13 14 the bottom. He said, You have to clean the 14 15 whole entire, the whole hill. I said, 15 16 You're kidding me. He said, No. 16 17 The side, the gUy with the crane 17 .L8 yard, his weeds are still there. He never 18 19 cut them the whole time. Since that, he's 19 20 never cut them. They're still there. 20 21 Q. And you complied with this, with 21 22 this -- 22 23 A. Yes, I complied. $800 later, but I 23 24 complied. Yes. I had to pay my nephew to 24 25 25

page

A. No, because I cut the hill within 48 hours. It was done within 48 hours.

Q. Did you ask for additional time? A. No, I didn't ask for additional

time. Q. Do you have any other complaints

about the City of Hurricane that we haven't talked about?

A. Well, the access road, that's, to me that's huge. Q. What was that complaint? A. To the Wal-Mart, how they dropped it

below my property level and I can't sell my house.

Q. SO you think that they --A. The city approved it. Q. The city--A. Your city manager approved it.

MR. KONSTANTY: Let me again object to counsel assisting in answering questions.

Q. Okay. The city approved this --A. I would, I would think they have a

building or a planning person that has to,

i'i

~ ~ it ~ ~)

1 ~ I, ;, g ~ ~ !i .~ M

i ~ ~ i i ~. ~ * ~ ~ ~ ~ do that, I had to buy a weed eater with a the city manager, I would think he oversaw

I----------~------~-----------------------+--------~----~~----------------------~~ 61 ~ Page 59 Page

I ~ ! A. Why didn't they put the access on ii

the other side of the hill? ~ Q. Do you know if the access road I

1i violates any code? ~

A. No. ~ Q. I'll just check my notes one time. I

1 1 2 blade, I had to, you know, get, rent a 2 3 U-Haul. And I was out there with them, 3 4 seven to eight months pregnant, pulling out 4 5 limbs and just all of that. My mother fell 5 6 on the pavement and busted her face all up. 6 7 She's 82 years old at the time. I mean, we 7 8 were all out there wprking, because I didn't 8 9 want them to boilier me. And they would have 9

10 bothered me. I knew, they did intimidate 10

the whole project. Q. Do you know if any of the approve

Do you share your husband's opinion ~ that the City of Hurricane is corrupt? ;j

A. I don't have personal knowledge of ~

11 me, and they knew that's what they were 11 12 doing. Mark wasn't there, and they knew 12 13 they could get away with it. 13 14 Q. How did they bother you, just by 14 any of that. It's only hearsay from, you !

know, him. So I can't answer that question. ~ If I had to look at my situation and judge i ili~fu. I

Q. Before you manied your husband, did i you have any problems with or complaints to i ~ci~ I A No ~ . . ~

MR. MULDOON: I don't have anymore ~

questions. Thank you. ~

15 issuing this citation? 15 16 A. Yeah. They centered me out, that's 16 17 why they bothered me. They didn't bother 17 18 anybody else. 18 19 Q. SO you feel you were singled out by 19 20 -- 20 21 A. Oh, most definitely was singled out. 21 22 Q. What was ilie resolution of the 22 23 citation? 23 24 A. I fixed the hill, I cut the hill. 24 THE DEPONENT: Thank you. i

hW"' ... ,,. ..•. ,,,., ,.'''.,,~, ,_='" . ,',=,." '_"'",M""_' ___ "~"~~~~''''''''~'Qo''~.',,,.,w,_,.,,,,,~~,,. =",,,,",~w,,.w.,,,, .. n~~~!:!!TE: I h!ve no follow-up. ,.....,....~~~,~=_.~ 25 Q. Did you have to pay any fines? 25



Page 62 Page 64 ! ~

; MR. KONSTANTY: Read or waive? ; CAPTION I 3 MS. SOLOMON: Read. 3 The Deposition of DOLORES JEAN I 4 MR. KONSTA,NTY: Okay. She'll read. 4 HALBURN, taken in the matter, on the date, i 5 MR. MULDOON: Thank vou for coming 5 and at the time and place set out on the ~ 6 in. J 6 title page hereof. i 7 VIDEOGRAPHER: The deposition is now 7 It was requested that the deposition ~ 8 concluded, and the time is 6:45 p.m. 8 be taken by the reporter and that same be ~ 9 (Whereupon, read and sign.) 9 reduced to typewritten form. ~

10 (Whereupon, the Videotaped Deposition 10 It was agreed by and between counsel ~ 11 of DOLORES JEAN HALBURN concluded at 6:45 11 and the parties that the Deponent will read ~ 12 p.m.) 12 and sign the transcript of said deposition. ~ 13 13 ~

~~ ~~ ~ J 16 16 'j

~~ ~~ I 19 19 I ~ ~ ;~ I 22 22 I 23 2 3 ~

24 2 4 ~ 25 25 i 1-----------.'-" ---------+------------------11

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

, , Page 63

!,

CERTIFICATE I, Kathryn S. Little, a Notary

Public and Certified Court Reporter duly commissioned and qualified, do hereby certify that the videotaped deposition of DOLORES JEAN HALBURN was duly taken by me and before me at the time and place specified in the caption hereof.

I further certify that said proceedings were correctly taken by me in stenotype notes, and reduced to typewriting, and that said transcript is a true record of the testimony given by said witness.

I further certify that I am neither attorney or counsel for, or related to or employed by, any of the parties to the action in which these proceedings were had, and further I am not a relative or employee of any attorney or counsel employed by the parties hereto or financially interested in the action.

Kathryn S. Little, CCR DATE: August 25,2008

1 2 3 4

5

6 7

8

9

10 11

12 13 14 15 16 17 18 19 20 21 22 23 24

CERTIFICATE STATE OF

Page 65 ~ 11

I ~ ~ ~

COUNTY/CITY OF: ~

Before me, this day, personally ~ appeared, DOLORES JEAN HALBURN, who, being duly ~ sworn, states that the foregoing transcript ~ of his/her Deposition, taken in the matter, I on the date, and at the time and place set ~

out on the title page hereof, constitutes a i true and accurate transcript of said ¥ deposition. i

~ ~

1 DOLORES JEAN HALBURN

SUBSCRIBED and SWORN to before me this day of , 2008 in the

jurisdiction aforesaid.

My Commission Expires Notary Public



Page 66

1 2 DEPOSITION ERRATA SHEET

3

4 RE: Accurate Court Reporting, Inc.

5 Case Caption: DOLORES HALBURN AND MARK HALBURN

6 VS. CITY OF HURRICANE, WEST VIRGINIA, ET AL

7

8 DEPONENT: DOLORES JEAN HALBURN

9 DEPOSITION DATE: July 23,2008

10

11 To the Reporter:

12 I have read the entire trall,~cIipt of my

13 Deposition taken in the c,!-ptioned matter or the

14 same has been read to me. I request that the

15 following changes be entered upon the record for

16 the reasons indicated. I have signed my name

17 to the Errata Sheet and the appropriate

18 Certificate and authoIize you to attach both to

19 the original transcript.

20

21 22 23 24 25

Page 67

1 2

3 4

5 6 7

:(':'1'

8

9 10

11

12

13 14

15

16 17

18 19

20

21 22 23 SIGNATURE: DATE:

24 DOLORES JEAN HALBURN

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18 (Pages 66 to 67) fe6a4ec5-8d4a-4eOf·9fdd·d7 eb2b5b 7177

EXHIBITC

{C0043539.1}


DOLORES HAL BURN and MARK HALBURN,

Plaintiffs,

vs. Civil Action No.: 07-C-298

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.

PLAINTIFFS' RESPONSE TO FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS OF

DEFENDANT CLEVELAND CONSTRUCTION, INC.,

INTERROGATORY NO.1: Please state, for each plaintiff, complete name, social security

number, date of birth, current address, the time period during which each plaintiffhas resided at

that address and if for a period of less than ten years, state all other addresses at which each

plaintiff has resided for the last ten years, and each plaintiff=s employment history for the last

10 years preceding the commencement of this action.

ANSWER: Dolores Jean Halburn, 288-58-9811, 11/10/64, Rt. 4 Box 455, Hurricane, WV 25526 1992-present. Lived approximately 18 months in San Diego 1998-2000.

Employment: BB&T 4-24-07-Present, United TalentlKanawha Co. Board of Education 12-6-4-24-07, WV Dept. Of Education- 11-05-8-06, CASI- 6-01-11-05, Thomas Memorial Hospital 1-99-6-01, San Diego Opera- 1998-1999, T-Shirt International 1997-1998, Charleston National Bank 1987-1997

Mark Vance Halburn; 556-72-620, 1117/1961; Rt. 4 Box 455 Hurricane, WV 25526, 2000 - present; California prior 5841 Amaya Drive. Apt. Lakeside, CA 92040 1998 -1999; 345 Estes el Cajon, CA 920201996 - 1998. Employment: See Attached

MAR 17 21)08

INTERROGATORY NO.4: Please identify all persons, including their full name(s) and

addressees), known to the plaintiffs or to the plaintiffs' attorneys who were or claim to have

been a witness to the facts or contentions offact identified in your response to Interrogatory No.

2 above.

ANSWER:

Mark Halburn 194 Grace Drive, Hurricane, WV 25526

Dolores Halburn 194 Grace Drive, Hurricane, WV 25526

Carole Shortt Suddenlink, 1036 Quarrier St. Charleston, WV

Lawrence J. Smith 2nd St. Hurricane, WV 25526 (550-5829)

David Bledsoe Family First Realty Chase Park Teays Valley Rd

Hurricane, WV 25526 (562-2893)

INTERROGATORY NO.5: Please identify each and every rule, regulation, statute, or other

authority applicable to the matters made the subject of the Complaint filed herein which the

plaintiffs or the plaintiffs' attorneys contend was violated or not followed by defendant

Cleveland Construction, Inc., which forms the basis of the allegations against defendant

Cleveland Construction, Inc., if any.

ANSWER: Other than the now declared unconstitutional ordinance and numerous

citations of case law cited hereinafter, none.

INTERROGATORY NO. 6: Please identify all persons whom you intend to call to give expert

testimony at the trial of this action including, as to each: the full name and address of such

expert; the subject matter on which the expert is expected to testify; the substance of the facts

and opinions to which the expert is expected to testify; a summary of the grounds for each


DOLORES HALBURN and MARK HALBURN,

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.

CERTIFICATE OF SERVICE

Civil Action No. 07-C-298

I, Patrick T. White, counsel for Defendant, do hereby certify that service of the foregoing

Defendant, Kanawha Stone Company, Inc. 's, Motion for Summary Judgment was made upon

counsel of record this ~'~ay of August, 2008, by mailing a true and exact copy thereof via

first class United States Mail, postage prepaid, in an envelope addressed as follows:

{C0074483.! }

Michael T. Clifford, Esquire (WVSB #750) 723 Kanawha Boulevard, East

Union Building, Suite 300 Charleston, WV 25301

Paul A. Konstanty, Esquire (WVSB #9210) Steptoe & Johnson PLLC Chase Tower/Eighth Floor

P.O. Box 1588 Charleston, WV 25326-1588

Patrick T. White

70f7

HP. ) R.· ... ·.D.1 .• It.'··l~STON I }~ ... ' IU ./.. \ , -,.

August 29,2008

Donald A. Wright, Clerk Circuit Court of Putnam County 3389 Winfield Road Winfield, WV 25213

Huntington, WV I Ashland, KY Charleston, WV.JjLouisville, KY

...0 ,.

P 'k 'r Wh' E' ~ «4 atnc . Ite, sqmre ~ '..;.0 Direct Dial: (304) 720-7502 ~ "'" \ Email: [email protected] ~.:..~ ~

tf!e~ --<). ~\'\ ~ ~ ~ ......... \ ft

Re: Halburn v. Kanawha Stone Company, Inc., et al Civil Action No.: 07~C~298 Our File No.: 92030~0652

Dear Mr. Wright:

Please find enclosed for filing in the above~referenced matter Defendant, Kanawha Stone Company, Inc. 's, Motion for Partial Summary Judgment. As evidenced by the Certificate of Service, copies of the same have this day been served upon counsel of record.

~~ Patrick T. White

PTW/kas

Enclosure

cc: Honorable Robert G. Chafin, Judge Michael T. Clifford, Esquire Paul A. Konstanty, Esquire Johnnie E. Brown, Esquire

Huddleston Bolen LLP 707 Virginia Street East, Suite 1300, PO Box 3786, Charleston, WV 25337-3786 {C0074539.1} Tel: 304/344-9869 Fax: 304/344-4309 www.huddlestonbolcn.colll

Motion For Summary Judgment /Plaintiff Mark Halburn Deposition #07-c-298

Law

Transcript of Motion For Summary Judgment /Plaintiff Mark Halburn Deposition #07-c-298