AlaFile E-Notice

To: DEAN MICHAEL GREGORY

mdean@ago.state.al.us

11-CV-2018-900431.00

Judge: BRIAN P HOWELL

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF CALHOUN COUNTY, ALABAMA

The following matter was FILED on 8/31/2018 6:49:54 PM

STATE OF ALABAMA ET AL V. AMERICAN PLUMBING AND SEPTIC SERVICE, LLC E

11-CV-2018-900431.00

OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION AND APPOINTMENT OF RECEIVER

Notice Date: 8/31/2018 6:49:54 PM

[Filer: BARNES NOEL STEVEN]

KIM MCCARSON

CIRCUIT COURT CLERK

CALHOUN COUNTY, ALABAMA

ANNISTON, AL, 36201

256-231-1750

Kim.McCarson@alacourt.gov

25 WEST 11TH STREET

C001 STATE OF ALABAMA

1

IN THE CIRCUIT COURT OF CALHOUN COUNTY, ALABAMA

STATE OF ALABAMA, )

)

Plaintiff, )

)

v. ) Civil Action No. 2018-900431

)

AMERICAN PLUMBING AND )

SEPTIC SERVICE, LLC, et al., )

)

Defendants. )

STATE’S RESPONSE TO DEFENDANTS’ UNTIMELY PLEADING,

MOTION TO STRIKE DEFENDANTS’ ANSWERING AFFIDAVITS, AND

MOTION FOR LIVE TESTIMONY

COMES NOW the Plaintiff, State of Alabama (hereinafter “State”), by and through

undersigned counsel, and hereby files the State’s Response to Defendants’ Untimely Pleading,

Motion to Strike Defendants’ Answering Affidavits, and Motion For Live Testimony. As grounds

for this Response and these Motions, the State provides the following:

Section XIII of the Ex parte Temporary Restraining Order (and Order to Show Cause Why

a Preliminary Injunction Should Not Issue) (hereinafter “TRO”) requires Defendants to “serve on

Plaintiff’s counsel any answering affidavits, pleadings, motions, expert reports or declarations,

an/or legal memoranda no later than four (4) business days prior to the hearing on Plaintiff’s

request for a preliminary injunction.” (TRO at 27). Section XIV of the TRO establishes the same

deadline for the filing of motions requesting live testimony. That section states that “[l]ive

testimony shall be heard only on further order of this Court or on motion filed with the Court and

served on counsel for the other parties at least four (4) business days prior to the preliminary

injunction hearing in this matter.” (Id.) (emphasis added).

ELECTRONICALLY FILED8/31/2018 6:48 PM

11-CV-2018-900431.00CIRCUIT COURT OF

CALHOUN COUNTY, ALABAMAKIM MCCARSON, CLERK

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Because Labor Day is celebrated on September 3rd, three (3) calendar days prior to the

preliminary injunction hearing scheduled for September 6th, the fourth business day prior to the

hearing was Thursday, August 30th, according to Rule 6 of the Alabama Rules of Civil Procedure.

On Friday, August 31st, one day after the deadline imposed by the TRO for Defendants to

file pleadings, answering affidavits, and for parties to file Motions for Live Testimony, Defendants

filed their Opposition to the State’s Motion for a Temporary Restraining Order, which included

multiple answering affidavits from Defendants and their employees/former employees, as well as

hundreds of pages of supporting exhibits. Though the TRO allows the State to file responsive or

supplemental pleadings no later than one (1) business day prior to the preliminary injunction

hearing, the State would have filed a Motion for Live Testimony yesterday, had Defendants timely

filed their pleading, answering affidavits, and new exhibits. Because Defendants missed the

clearly-established deadline by which to serve pleadings and answering affidavits on the State, the

Defendants’ pleading and answering affidavits should be excluded.

If the Court chooses not to exclude Defendants’ untimely pleading and answering

affidavits, the Court should allow the State to present live testimony from the following witnesses

at the show cause/preliminary injunction hearing in response to the new evidence offered in

Defendants’ untimely pleading and answering affidavits1:

1. Mr. Joseph Dodson, a mechanic whose business address is 14601 Highway 78,

Fruithurst, Alabama 36262. Mr. Dodson’s phone number is (256) 689-2710. Mr.

Dodson will testify about Defendants’ attempt to take possession of a Receivership

asset, a truck, in violation of the TRO in this case, and will rebut evidence offered

by Defendants.

1 The State reserves the right to address other claims made by Defendants in their untimely pleading at a later time.

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2. Ms. Deborah Richardson, a customer of American Plumbing and Septic Service,

owns a residence located at 412 Avenue H, Talladega, Alabama 35160. Ms.

Richardson’s telephone number is (706) 833-3871. Ms. Richardson will testify

about her experiences as a customer of the Defendants, as well as the Defendants’

continued attempts to operate after the issuance of the TRO, and will rebut evidence

offered by Defendants.

3. Mr. Joshua Duke is employed by Mr. Dan’s Plumbing, located at 1258 County Line

Road W., Eastaboga, Alabama 36260. Mr. Duke’s telephone number is (256) 333-

5131. Mr. Duke will testify about his experience as an employee at American

Plumbing, and will rebut evidence offered by Defendants.

4. Mr. Walt Endress is the northeast district inspector with the Alabama Liquefied

Petroleum Gas Board, located at 777 South Lawrence Street, Suite 100,

Montgomery, Alabama 36104. Mr. Endress’s phone number is (334) 430-7642. Mr.

Endress inspected unpermitted LP Gas work performed by American Plumbing at

Ms. Cleveland’s home, condemned her LP Gas system until the work performed by

American Plumbing could be brought up to code, and will rebut evidence offered

by Defendants.

5. Special Agent Corey Railey is employed by the Alabama Department of Insurance,

Criminal Investigations Division, located at 201 Monroe Street, Suite 1790,

Montgomery, Alabama 36104. Mr. Railey’s phone number is (334) 241-4166.

Special Agent Railey will testify about his investigation into unlicensed work

performed by American Plumbing that resulted in dangerous conditions that

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threatened the health and safety of multiple Calhoun County residents and will

rebut evidence offered by Defendants.

6. Mr. Max Gaskins is employed by the Oxford Water Works and Sewer Board,

located at 600 Barry Street, Oxford, Alabama 36203. Mr. Gaskins’ telephone

number is (256) 831-5618. Mr. Gaskins will testify about his observation of the

illegal discharge of sewage into the Oxford sanitary sewer system by employees of

American Plumbing at the business address of American Plumbing and will rebut

evidence offered by Defendants.

7. Mr. Michael Leonhardi is the southern district supervisor and compliance officer

with the State of Alabama Plumbers and Gas Fitters Examining Board, located at

216 Aquarius Drive, Suite 319, Homewood, Alabama 35209. Mr. Leonhardi’s

telephone number is (205) 945-9915. Mr. Leonhardi will testify about his

investigations into numerous code violations and life-safety issues resulting from

work performed by American Plumbing. He will rebut evidence offered by

Defendants.

8. Mr. Chris Callahan is an inspector with the City of Oxford Building, Planning &

Zoning Department, located at 145 Hamric Drive East, Oxford, Alabama 36203.

Mr. Callahan’s telephone number is (256) 831-9685. Mr. Callahan will testify about

his investigations into unlicensed and unpermitted work performed by American

Plumbing, his interactions with Defendants, and will rebut evidence offered by

Defendants.

9. Mr. Mike James is employed by the Alabama Board of Electrical Contractors,

located at 2777 Zelda Road, Montgomery, Alabama 36106. Mr. James’ phone

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number is (334) 420-7232. Mr. James will testify about his investigations into

unlicensed electrical work performed by American Plumbing and will rebut

evidence offered by Defendants.

10. Mr. Russell Harry is the environment manager in the Talladega County Division of

the Alabama Public Health Department, located at 1004 South Street East,

Talladega, Alabama 35160. Mr. Harry’s telephone number is (256) 249-3807. Mr.

Harry will testify about his inspections of work performed by American Plumbing

and will rebut evidence offered by Defendants.

11. Mr. Lee Willis is a technical inspector with the City of Anniston Planning and

Development Services, located at 1128 Gurnee Avenue, Anniston, Alabama 36202.

Mr. Willis’ telephone number is (256) 241-0245. Mr. Willis will testify about work

performed by American Plumbing without the required city permit and will rebut

evidence offered by Defendants.

12. Mr. Jeff Muncher, a customer of American Plumbing and Septic Service, resides at

2806 Paul Street, Anniston, Alabama 36201. Mr. Muncher’s telephone number is

(256) 238-3637. Mr. Muncher will testify about his experiences as a customer of

the Defendants and will rebut evidence offered by Defendants.

13. Ms. Rebecca Cleveland, a customer of American Plumbing and Septic Service,

resides at 1052 Holland-Finley Road, Jacksonville, Alabama 36265. Ms.

Cleveland’s telephone number is (256) 238-2010. Ms. Cleveland will testify about

her experiences as a customer of the Defendants, including the performance of

unlicensed LP gas work at her home, and will rebut evidence offered by

Defendants. (See attached Affidavit).

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14. Mr. Roger Buck, a customer of American Plumbing and Septic Service, resides at

400 Buck Drive, Ohatchee, Alabama 36271. Mr. Buck’s telephone number is (256)

390-3101. Mr. Buck will testify about his experiences as a customer of the

Defendants, including the performance of unlicensed electrical work at his home,

and will rebut evidence offered by Defendants. (See attached Affidavit).

15. Mr. Richard Martin, a customer of American Plumbing and Septic Service, resides

at 3530 Bobwhite Street, Oxford, Alabama 36203. Mr. Martin’s telephone number

is (256) 846-0206. Mr. Martin will testify about his experiences as a customer of

the Defendants, including the performance of unlicensed electrical work at his

home, and will rebut evidence offered by Defendants.

16. Ms. Shirley McKerley, a customer of American Plumbing and Septic Service,

resides at 1711 Louise Drive SE, Jacksonville, Alabama 36265. Ms. McKerley’s

telephone number is (256) 435-9337. Ms. McKerley will testify about her

experiences as a customer of the Defendants, including the performance of

unlicensed electrical work at her home, and will rebut evidence offered by

Defendants. (See attached Affidavit).

17. Mr. Gerald Price, a customer of American Plumbing and Septic Service, resides at

86 Jacob Court, Anniston, Alabama 36207. Mr. Price’s telephone number is (256)

283-5995. Mr. Price will testify about his experiences as a customer of the

Defendants, including the performance of unlicensed electrical work at his home,

and will rebut evidence offered by Defendants. (See attached Affidavit).

18. Mr. Perry Grissom, a customer of American Plumbing and Septic Service, resides

at 399 Cherokee Trail, Piedmont, Alabama 36272. Mr. Grissom’s telephone

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number is (256) 282-2361. Mr. Grissom will testify about his experiences as a

customer of the Defendants, including the performance of unlicensed electrical

work at his home, and will rebut evidence offered by Defendants. (See attached

Affidavit).

19. Mrs. Tiffany Baker, a customer of American Plumbing and Septic Service, resides

at 31 Piper Street, Eastaboga, Alabama 36260. Mrs. Baker’s telephone number is

(575) 937-8265. Mrs. Baker will testify about her experiences as a customer of the

Defendants, including the performance of unlicensed electrical work at her home,

and will rebut evidence offered by Defendants. (See attached Affidavit).

20. Mr. David Plokhooy, a customer of American Plumbing and Septic Service, resides

at 2406 Inverness Cliffs, Birmingham, Alabama 35242. Mr. Plokhooy’s telephone

number is (205) 219-3800. Mr. Plokhooy will testify about his experiences as a

customer of the Defendants and will rebut evidence offered by Defendants.

21. Ms. Lesia Abbott, a customer of American Plumbing and Septic Service, owns Real

Life Recovery, located at 52888 US-78, Eastaboga, Alabama 36260. Ms. Abbott’s

telephone number is (256) 770-7261. Ms. Abbott will testify about her experiences

as a customer of the Defendants, including the performance of non-permitted

plumbing work and unlicensed fire-sprinkler work which resulted in damage and

created unsafe conditions at the property, and will rebut evidence offered by

Defendants.

22. Mr. Fred Pope, a customer of American Plumbing and Septic Service, resides at

1902 Gladden Lane, Alexandria, Alabama 36250. Mr. Pope’s telephone number is

(256) 499-5206. Mr. Pope will testify about his experiences as a customer of the

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Defendants and will rebut evidence offered by Defendants. (See attached

Affidavit).

23. Mr. Danny Whitt, a customer of American Plumbing and Septic Service, resides at

190 Jacque Jim Drive NE, Huntsville, Alabama 35810. Mr. Whitt’s telephone

number is (256) 746-1088. Mr. Whitt will testify about his experiences as a

customer of the Defendants and will rebut evidence offered by Defendants. (See

attached Affidavit).

24. Defendants have included with their untimely pleading, answering affidavits from

themselves and the following employees and former employees, for which the State

seeks live rebuttal testimony at the show cause/preliminary injunction hearing:

Richard Joshua Pesnell, Anniston, Alabama

Reginald Bell, Calhoun County, Alabama

Skipper Chancey, Calhoun County, Alabama

Cody Fowler, Calhoun County, Alabama

Anthony Hooper, Calhoun County, Alabama

Derrick Kilgore, Calhoun County, Alabama

Frederick Luhn, Calhoun County, Alabama

Dean McCombs, Calhoun County, Alabama

Derrick McMullin, Calhoun County, Alabama

Adam Patterson, Talladega County, Alabama

Bruce Smith, Calhoun County, Alabama

John Tisdale, Talladega County, Alabama

Brayden Walker, Cleburne County, Alabama

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Kyle Wilkins, Talladega County, Alabama

Mack Wright, Calhoun County, Alabama

Michael Young, Calhoun County, Alabama

Respectfully submitted this, the 31st day of August, 2018.

Steve Marshall

Attorney General

/s/ Noel S. Barnes

Noel S. Barnes

Michael G. Dean

Assistant Attorneys General

Attorneys for Plaintiff, State of Alabama

DOCUMENT 180

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CERTIFICATE OF SERVICE

I hereby certify that, on this 31st day of August 2018, I have served a copy of the foregoing

upon counsel for the Defendants by mailing copies of the foregoing by email or by first-class U.S.

Mail, at the following addresses:

Tabor R. Novak III

J. Scott Dickens

Starnes Davis Florie, LLP

100 Brookwood Place, 7th Floor

P. O. Box 598512

Birmingham, Alabama 35259-8512

tnovak@starneslaw.com

sdickens@starneslaw.com

Gregory C. Morgan

Charles P. Gaines

Gaines, Gaines, & Rasco, PC

127 North Street

Talladega, Alabama 35160

gregmorganlaw@gmail.com

melissa@gainesrasco.com

/s/ Noel S. Barnes

Noel S. Barnes

Assistant Attorney General

ADDRESS OF COUNSEL:

Office of the Attorney General

Consumer Interest Division

P.O. Box 300152

501 Washington Avenue

Montgomery, Alabama 36130-0152

Phone: (334) 242-7300

Fax: (334) 242-2848

nbarnes@ago.state.al.us

mdean@ago.state.al.us

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STATE OF ALABAMACALHOUN COUNTY

AFFIDAVIT

))

BEFORE ME, the undersigned authority, duly authorized to administer oaths

personally appeared, Tiffany Baker, who upon oath, deposes and says as follows:

My name is Tiffany Baker, and I am 29 years of age. I live at 31 Piper Street,

Eastaboga, AL. Based on my personal knowledge I swear and affirrn that the

following information is true and accurate:

1. On February 4,2018, my family woke up early in the morning to the smell ofsewage. My dad found sewage spilling out from under my house. I contacted AmericanPlumbing and Septic and asked them to come give me an estimate to fix the problem.

2. Bruce from American Plumbing told us that we needed a new tank andfield lines at a cost of $13,000. He said that they would have to begin work immediately,and related a story to us about a family who had recently been kicked out of their homeby the Health Department due to a similar problem,

3. My husband and I panicked at the thought of this, as we have four smallchildren. Scared of being kicked out of our home, we felt like we didn't have time to getanother price estimate. My husband gave verbal permission to see if he qualified for aloan for the quoted $13,000.

4. After work began, Bruce informed us that we would need an engineeredsystem, wllich would require a permit from the Health Department before work couldcontinue. Bruce explained that the cost of the job might triple, depending on what theHealth lnspector said.

5. \Mren the Health lnspector anived, he handed me a paper to sign. Brucetold me that he was supposed to have me sign this permit before he started digging, buthe did not do so.

6. Bruce said the Health lnspector gave him three days to fix the problem, orelse we would have to move out. He said that to fix the problem we needed a biggertank, another pump, and field lines with 12 inches of dirt on top due to the size of ourfamily for a new total cost of $38,000!

7. Our house only cost $70,000, and has just one bathroom. I told Bruce thatif the repair was really going to cost $38,000, we would just abandon the house and file

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bankruptcy. He said he could get us a deal at $28,000, as long as we told the Health

Department he was doing it for $38,000.

8. Bruce then applied for a new loan in my name only for an additional

$15,000. I don't work, so I'm not sure how I was approved. I was in total shock and feltpressured by everything Bruce was saying and doing, so I didn't think I had a choice at

this point.

g. Bruce told me before I signed the papenrork that the loan payments weregoing to be $150 per month. But, the loan payments will be approximately $7QQ pslmonth, which is more than four times the amount that Bruce originally estimated.

10. Bruce also told me that there would be no interest on the loans for the first

twelve months, but this was a lie. We are currently paying interest.

11. That afternoon, I made a Facebook post about the price. I had people

calting me about it, so t called a recommended company who told me all that work

shouldn't cost over $12,000. My husband called American Plumbing and told them to

stop work at our house.

12. Bruce came back to our house an)ruray. We told him we wanted to pay for

what he had already done and were going to have someone else finish the job. He told

us he already had five dump trucks coming that night with special dirt and there was

nothing we could do about it. He said the money from our loan had already been used,

and there was nothing we could do about that either.

13. Bruce said that if we had someone else come finish the job, the Heatth

lnspector would have to come back and she would find things that would get us in

trouble. This scared us into telling him to finish the job because we believed we had no

way to get our money back from the loans.

14. On Tuesday the 6h, I called the loan company, Green Sky, who told me

that we coutd indeed get our money back, and that the company could give us a refund.

She told me to tellthem to stop working. \Mren I contacted Bruce, he refused to stop

working because he had already done $18,000 of work, and five dump trucks were on

the way. He said the trucks couldn't be cancelled and had already been paid for.

15. Bruce also said he was going to lay piping down for dirt to be dumped on

so that he wouldn't ruin our front yard, but he didn't. Once I saw our front yard torn up, I

told him to dump the dirt that was already paid for and to leave.

16. He then made a calland said he could reduce the price by $4,000. I told

him to let me ask my husband first, and I then called another septic company who

quoted me a price of $tS,OOO for the same job Bruce was doing. \Mile on this call, I

saw Bruce take dirt to the back yard and begin digging for a line.

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17. I went outside and told them to stop--for the third time. Bruce told me that

his boss said no, and to keep working because rain was coming. He then said they got

my money when I signed the loan and there was nothing I could do about it.

18. Bruce next told me I could give him $23,000 right then and that he wouldleave, or to give him $24,000 to put field lines in.

19. Since February, state officials from the Department of Public Health,

Onsite Wastewater Board, and Electrical Contractors Board have conducted inspectionsat my home and have all found violations of their code provisions. These violationsincluded unlicensed and unpermitted electricalwork as well as numerous sewer and

electrical code violations that I understand create a safe$ issue for my husband and 4young children.

20. Although I demanded multiple times that they stop work and leave mypropefi, Bruce's son refused to leave until I signed the work authorization sec'tion on

the invoice, so lsigned it.

20.1 would have never hired American Plumbing had I known they would perform

unlicensed, unpermitted, uninspected, and non-compliant plumbing and sewer work on

my home. My husband and I certainly would not have agreed to borrow $28,000through GreenSky to pay for their services.

21.1 am requesting the following relief from the court:

a. An order cancelling both of our GreenSky loans due to fraud that would

require the credit bureaus to remove any negative information relating

to the work performed by American Plumbing from our credit reports;

b. A full refund of the loan payments we have made, in the amount of

$563;c. $30,420 to return our septic system and electrical system to

compliance with state taw, to return our back yard to the proper grade

to prevent water from draining under our house, causing furtherdamage from erosion, and to perform the other necessary repairslisted in the attached estimate.

I have attached a true and accurate copy of the estimate I obtained for the work

listed above. I swear and affirm that the above information is true and accurate to the

best of my knowledge.

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sr/t/CIRN To AND SUBscRIBED before me this 1loay ot [t

My Commission Expires:l,':\ DAML.MIL

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Arnold Construction & Electrical Services

1136 Dearmanville Dr N.

Anniston, AL 36207

Cell 256-310-4467

Fax 256-403-2173

INVOICE

INVOICE # 166

DATE:JUNE 5, 2018

BILL TO:

Eric & Tiffany Baker

PROJECT ADDRESS:

Eastaboga, Al 36260

COMMENTS OR SPECIAL INSTRUCTIONS:

Estimate P.O. NUMBER TERMS

Due on receipt

ITEM DESCRIPTION AMOUNT

excavation Use an excavator to remove fill dirt so soil is not compacted and a skid steer to

load dirt on a dump truck and haul away

2 machines @ $100 an hour for 12 hours ea $2,400

Dump truck @ $75 an hour for 8 hours $600

Engineer Engineer fee/ perk test $1,800

Septic system Remove and reinstall tanks and 135’ chamber $6,800

Electrical Install dedicated GFCI circuit to pump $825

Grade Finish grade with skid steer and Harley rake $1,800

Plumbing Install new drain for washing machine to septic tank $1,125

Fence Remove and reinstall fence $200

Tree Removal “IF NEEDED” remove 2 large trees $3,500

Sod Install sod in front and back yard 18 Pallets Bermuda $6,300

Profit/overhead 10% profit and 10% overhead $5,070

TOTAL $30,420

Thank you for your business!

Make all checks payable to Arnold Construction & Electrical Services

If you have any questions concerning this invoice, contact Nick Arnold

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