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No.1644 .
ROBERT E. FRANZ JR.
Robert E. Franz Jr.*
Office of Attorneys and Counselors
Jerome P. Larkin
P.O. Box 62
Elizabeth S. Moseley
Springfield, Oregon 97477
Phone: (541) 741-8220
Admitted in Oregon,
FAX; (541) 741-8234
Washington & Idaho
Internet: [email protected]
Theresa L. Franz
Kimberly A. Dahlgren
Legal Assistants
FAX TRANSMITTAL
To:
r. Frank Weiss
From: obert E. Franz, Jr. / Theresa
RE:
ughes v. Foster
, et al.
Date:
onday, July 9, 2012
Number of Pages (including this cover sheet): 141
Attached are the following documents:
1.
Motion for Unlimited Stalking Order;
2.
Legal Mem orandum in Opposition to Respondent's Motion for
Summary Judgment and in Support of Motion for Unlimited
Stalking Order by Petitioner Kasey Hughes.
CONFIDENTIALITY NOTICE
This facsimile transmission (and/or documents accompanying it) may contain
confidential information, which is protected by the attorney-client privilege. The
information is intended only for the use of the individual or entity named above. If
you are not the intended recipient, you are hereby notified that any disclosure,
copying, distribution or the taking of any ac tion in reliance on the contents of this
information is strictly prohibited. If you have received this transmission in error,
please immediately notify us by telephone to arrange for return of the documents.
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No. 1644
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IN THE CIRCUIT COURT OF THE STATE OF OREGON
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FOR THE COUNTY OF DES CHUTES
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Robert B. Franz Jr.
Post Office Box 62
Springfield, OR
97477
Phone:
(541) 741-8220
FAX; (54 1) 741-8234
In the matter of:
)
ase No. 10ST0027MS
Kasey Hugh es,
)
M otion for
Unlimited Stalking
Petitioner,
)
rder by Petitioner
Kasey Hughes
and )
Robert B. Foster,
)
Respondent.
)
COMES NOW
Petitioner Kasey Hughes, by and through his attorneys, the
Law Office of Robert E. Franz, Jr., and hereby moves the Court for an Order
for the entry of an Unlimited Stalking Order against Respondent, Robert
Foster, for the reasons that there are no disputes in the facts that Pe titioner is
entitled to such an order on the merits, and because the Respondent is not
medically stationary, and has not been so for the past 15 (fifteen) months.
THIS MOTION is made in good faith, not for the purpose of delay, and in
the opinion of counsel is well founded in law. Counsel relies upon the Points
and Authorities set forth in Petitioner's Legal Mem orandum in opposition to
respondent's motion for summary judgm ent and in support of its motion for
Page 1 - Motion for Unlimited Stalking Order
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unlimited stalking order; the exhibits, affidavits, declarations attached to the
Legal Memorandum; and all of the petitions, amended petitions, and pleadings
in the trial court file.
DATED: Monday, July 9, 2012.
Respectfully subipitted,
By:
e
W
LAW OFFICE OF RO BERT E. FRANZ, JR.
Robert E. Franz, Jr. OSB #73091
Email: [email protected]
P.O. Box 62
Springfield, OR 97477
Telephone: (541) 741-8220
Facsimile: (541) 741-8234
Attorney for Petitioner
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Robert B. Franz Jr.
Post Office Box 62
Springfield,
OR 97477
Phone: (541) 7418220
FAX (541)741-8234
Page 2 - M otion for Unlimited Stalking Order
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No.1644
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CERTIFICATE OF SERVICE
I hereby certify that I served the foregoing
MOTION FOR UNLIMITED
STALKING ORDER BY PETITIONER
on Respondent VIA FACSIMILE, EMAIL,
AND by depositing a certified true copy thereof in the United States mail in
Springfield, Oregon, on Monday, July 9, 2012, enclosed in a sealed envelope, with
postage paid and addressed to:
Mr. Foster A. Glass
Attorney at Law
339 S.W. Century Drive, Suite 201
Bend, OR 97702
Of Attorneys for Respondent
Mr. Frank Weiss
Tonkon Torp LLP
1600 Pioneer Tower
888 SW Fifth Avenue
Portland, OR 97204
Of Attorneys for Respondents
Dated: Monday, July 9, 2012.
/s/ Robert E Franz, Jr.
LAW OFFICE OF RO BERT E. FRANZ, JR.
Robert E. Franz, Jr.
SB #73091
P.O. Box 62
Springfield, Oregon 97477
E-Mail: [email protected]
Telephone: (541) 741-8220
Facsimile: (541) 741-8234
Attorney for Petitioner
I heJ7Ii4fy that this
document is a true and
correct copy of the original.
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No. 1644
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IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF DES CHUTES
In the matter of; )
ase No. 10ST0027MS
Kasey Hughes, )
Legal Memorandum
in Opposition to
Petitioner,
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espondent's M otion for
Summary Judgment and
and
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n Support Motion for
Unlimited Stalking Order
Robert B. F oster,
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y Petitioner Joseph Patnode
Respondent.
COMES NOW Petitioner Kasey Hughes, by and through his attorneys, the
Law O ffice of Robert E. Franz, Jr., and herewith submits his Legal
Memorandum in Opposition to Respondent's motion for summary judgment
and in support of his request for an unlimited Stalking Order against
Respondent Robert Foster. For the purpose of all motions pending before this
Court, Petitioner hereby incorporates all of the petitions, amended petitions,
and pleadings in this matter, together with the following attached exhibits.
Page 1 - Legal M emorandum in Opposition to Respondent's
Motion for Summary Judgment by Petitioner
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Robert B. F anz Jr.
Post Office Box 62
Springfield, OR
97477
Phone: (541) 741-8220
FAX: (541) 741-8234
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No. 1644 .
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. Plaintiff's Motion is Barred by the Previous Orders of this Court, and
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etitioner is Entitled to an Unlimited Stalking Order on the Merits and
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ecause Respondent is not Medically Cleared to Testify in These
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roceedings.
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A. The issues raised b the Respondent have already been decided
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gainst him
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In his motion for summary judgment, the Respondent does not produce
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ny facts or adm issible evidence that contests any of the facts set forth in the
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etitioner's Original and Amended Petition for a Stalking Order; nor does he
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ffer any facts or other admissible evidence show ing he did not stalk the
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etitioner; rather, he merely argues that the Stalking Order should not have
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een issued against him in the first place. Respondent's motion is too little, too
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ate, because the issues have already been decided against him.
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ORS 30.866 (1) Provides as follows:
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(1) A person m ay bring a civil action in a circuit court for a court's
stalking protective order or for damages, or both, against a person if:
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(a) The person intentionally, knowingly or recklessly engages in
repeated and unwanted contact with the other person or a member of that
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person's immediate family or household thereby alarming or coercing the
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other person;
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(b) It is objectively reasonable for a person in the victim's situation to
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have been alarmed or coerced by the contact; and
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(c) The repeated and unwanted contact causes the victim reasonable
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apprehension regarding the personal safety of the victim or a member of
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the victim's immediate family or household,
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Robes E. Franz Jr.
Pose Office Box 62
Springfield, OR 97477
Phone: (541) 741-8220
FAX (541)741-8234
Because Robert Foster violated ORS 30.866 (1) (a), on March 5, 2010, the
Petitioner brought this civil action against Mr. Foster for a stalking protective
order.
Page 2 - Legal M emorandum in Opposition to Respondent's
Motion for Summary Judgment by Petitioner
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On March 5, 2010, Judge Edward Perkins found there was probable
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ause to issue a Temporary Stalking Protective Order against the Respondent
based upon the Petitioner's Original Petition for a Stalking Order, and based
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pon the following findings of facts found by Judge Perkins:
1. Respondent has engaged intentionally, knowingly, or recklessly in
repeated and unwanted contact with the Petitioner or a member of the
M
etitioner's immediate family or household, and it was reasonable for
Petitioner to be alarmed or coerced by this contact.
2.
Respondent knew or should have known that the repeated contact was
unwanted.
3.
It is objectively reasonable for a person in Petitioner's situation to
have been alarmed or coerced by Respondent's contact.
4.
Respondent's repeated and unw anted contact caused the Petitioner
reasonable apprehension regarding the Petitioner's own personal safety
or the safety of a member of his/her immediate family or household.
The Temporary Stalking Protective Order was then served upon the
Respondent. The temporary order required the respondent to personally appear
before the court to show cause why the temporary order should not be
continued for an indefinite period.
ORS 30.866 (3)(a) provides as follows:
At the hearing, whether or not the respondent appears, the court may
continue the hearing for up to 30 days or m ay proceed to enter a court's
stalking protective order and take other action as provided in ORS
163.738.
On M arch 19, 2010, a hearing was held at which time the Respondent and his
first attorney appeared before Judge Michael A dler, After the hearing, Judge
Adler signed a Stalking Protective Order based upon the following:
The Court hereby finds by a preponderance of the evidence that
Respondent intentionally, knowingly or recklessly engaged in repeated
and unw anted contact with petitioner or a member of Petitioner's
Page 3 - L egal Memorandum in Opposition to Respondent's
Motion for Summ ary Judgment by Petitioner
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Robert B. Franz It
Post Office Box 62
Springfield, OR 97477
Phone: (541) 741-8220
FAX: (541)741-8234
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immediate family or household and thereby alarmed or coerced
petitioner. The Court further finds that it is objectively reasonable for a
person in Petitioner's situation to have been alarmed or coerced by the
contact and that the repeated and unwanted contacted caused Petitioner
reasonable apprehension regarding the personal safety of Petitioner or a
mem ber of Petitioner's imm ediate family or househo ld; .... Exh ibit A
at 1.
The time for the Respondent to have contested and showed cause why a
Stalking Protective Order should not have been issued was on March 19, 2010,
more then two years ago, If Respondent felt that the conduct of the stalking
was based upon protected speech, he had the opportunity to raise that issue in
writing before or at the hearing. He did not do so. Thus, as of M arch 19, 2010,
a stalking order based upon a preponderance of the evidence has been issued by
the Court. This finding is binding upon the Respondent, and no appeal has
ever been taken from this order.
The Respondent also ignores the fact that this Court also allowed an
Amended Petition, to which the Respondent once again tried to argue that the
conduct was protected speech. The Court ruled against that contention, and
granted the filing of an Amended Petition.
Furthermore, on the facts before this Court at this time, as contained in
the attached exhibits filed with this memorandum and the facts set forth in the
Petitioner's original and Amended Petition for a Stalking Order, the Court
should now issue an unlimited stalking order, especially in light of the fact that
Respondent has not been medically stable to testify for over one year, as
explained below.
B.
Respondent Not M edically Able to Testify
At this time, Petitioner also requests the Court to enter an unlimited
stalking order because the Respondent is not medically able to testify. As the
trial court file shows, the trial was set to comm ence on July 27, 2011. On July
Page 4 - Legal M emorandum in Opposition to Respondent's
Motion for Summ ary Judgment by Petitioner
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Robert E. Franz Jr.
Post Office Box 62
Springfield, OR 97477
Phone: (541) 741-8220
FAX: (541)741-8234
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21, 2011, the Respondent filed a motion to postpone the trial in this matter for
various reasons. The motion was denied by Judge M ichael Sullivan on July 26,
2011. Thereafter, on July 26, 2011, the Respondent filed an amended motion
to postpone the trial because the Respondent has a diagnosed medical
condition that prevents him from being able to participate in a trial;' The
motion to postpone was then granted on that basis.
The trial was reset for April 24, 2012. On M arch 28, 2012, the
Respondent filed a motion to postpone the trial because of the unavailability of
witnesses. At the hearing on the motion to postpone, after the motion was
denied by Judge Sullivan, the Respondent was ordered by Judge Sullivan to
appear for his deposition prior to trial. Then, again, on April 19, 2012,
Respondent filed a second motion to postpone the trial of April 24, 2012,
because of the medical condition of the Respondent. The Respondent has
refused to submit to the court-ordered deposition because of his medical
condition. The m edical condition was based upon the following note from Dr.
Wade Parker, M.D.:
Mr. Robert Foster has been a patient of mine since April 2011. He
suffers with depression, anxiety, and post-traumatic stress disorder.
Currently his symptoms are not well controlled with
my
treatment and in
my opinion he is not mentally stable to participate in his upcoming legal
deposition or other court related matters under oath. I have
recommended we obtain psychiatric clearance prior to these depositions
and court appearance. Appropriate referrals have been made. Once
cleared by psychiatry he can then under go the requested depositions and
court appearance, If there are any questions please le me know.
To date, M r. Foster has not been cleared by psychiatry. The trial has been
postponed twice because of the Respondent's medical condition, which now
has lasted 15 mon ths, The Petitioner should not be required to wait any longer
for an unlimited stalking order.
Page 5 -- Legal Memorandum in Opposition to Respondent's
Motion for Summ ary Judgment by Petitioner
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Robert B. Franz Jr.
Post Office Box 62
Springfield, OR 97417
Phone: (541)
741-8220
FAX: (541)
741-8234
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II. None of the Stalking Incidents in this Case Involve Protective Speech.
The Respondent contends that the initial stalking order issued in this case
should never have been issued because the conduct that supported the stalking
order was based upon protective speech. This contention has already been
ruled upon at the time of the granting of the amended petition, and fails for two
reasons. First, the conduct complained of did not involve protective speech.
See
exhibits, original Petition, and Amended Petition.
Second, the Respondent failed to contest or challenge the issuance of the
initial stalking order on the basis now claimed, and it is too late to do so. Thus,
his claims fail as a matter of law. State v. Ryan, 350 Or. 670,261 P.3d 1189
(Or. 2011).
Further, one must remember that this case also involves two contempt
claims based upon the Respondent's clear violation of the stalking order that
was issued. These claims can be litigated, and the Respondent is liable to
Petitioner for money damages, even if the order was erroneous or exceeded the
court's authority.
As stated in State v. Ryan 350 Or. 670,261 P.3d 1189 (Or. 2011):
The state responds that defendant is making an imperm issible collateral
attack on the underlying stalking protective order. This court has
previously explained that a party may be punished by contempt for
disobeying a court order, even if the order was erroneous or exceeded the
court's authority:
`If a court has jurisdiction over the parties and the subject matter, and its
order or decree is not complied with, that court may hold the
noncom plying party in contempt even if it later appears that the original
order or decree was either erroneous or in excess of the court's authority.
The integrity of the judicial process demands compliance with court
orders until such time as they are altered by orderly appellate review.
Litigants are not entitled to sit in judgment on their own cases, and they
must follow the appropriate channels for review of decisions they
Page 6 - Legal M emorandum in Opposition to Respondent's
Motion for Summary Judgment by Petitioner
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Roberl B. Franz Jr.
Posi Office Box 62
Springfield.
OR 97477
Phony (541) 741-8220
PAX: (541)741-8234
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Robert B. Fmuz Jr.
Post Of c 19os 62
Spdngneld, OR 97477
Phone (541) 741-8220
PAX; (541)741-8234
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF DESCHUTES
In the matter of:
Case No. IOSTOO27MS
Kasey Hughes,
Petitioner,
AFFIDAVIT of
Robert E. Franz, Jr.
and
in Support of Petitioner's
Response to Respondent's
Robert B. Foster,
Motion for Summary Judgment
Res pondent.
State of Oregon
53.
County of Lane
I, Robert E. Franz, Jr.,
being first duly sworn, do depose and say as
follows:
1. I am over the age of 18, and I make this affidavit based on personal
knowledge of the facts contained herein.
2. I am the attorney representing Petitioner Joseph Patnode the above-
entitled matter.
Page I - Affidavit of Robert B. Franz, Jr,
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3. The attached Exhibits A-F are true and correct copies of the originals.
Exhibit A Stalking Protective Order Signed by Judge A. Michael Adler
on March 19, 2010.
Exhibit B Deposition transcript of Hugh Palcia taken September 23, 2010,
Exhibit C Perpetuation deposition transcript of John McKenzie taken
February 16, 2012.
Exhibit D Deposition transcript of Michael Allen Kennedy taken
June 15, 2010.
Exhibit B Deposition transcript of Kasey Hughes taken May 21, 2010.
Exhibit F Deposition transcript of Joseph Patnode
ttak
een
May 21, 2010.
Y
Robert E. Franz, Jr.
SUBSCRIBED and SWORN to before me this
..
K 'I__
day of July,
/
OFFICIAL8FAL
1TRESA L FRANZ
UO-RRQON
ONND836799
R[S MARCH 7, 2013
Notary P bl is for Oregon
My Commission Expires:
191
201
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261
271
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Robert B. Franz Jr.
Post O(flco Hnx 62
Springfield, OR 97477
Phone: (541) 741-82211
PAX; (541)741.5234
Page 2 - Affidavit of Robert E. Franz, Jr,
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IN THE CIRCUIT COURT OF THE STATE OF OREGON
a
FOR THE COUNTY OF DESCHUTES
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KASEY HUGHES,
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Petitioner,
Case No. 10ST0027MS
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V.
STALKING PROTECTIVE ORDER
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OBERT B FOSTER,
Respondent,
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14 OTICE TO RESPONDENT: Violation of this Stalking Protective Order may result In your arrest and criminal or
civil penalties, This order Is enforceable In every state. Review this Order Carefully. Each provision must be
1s
beyed.
16 A hearing was held on March 19, 2010. Petitioner appeared with attorney Hanna Mlesner, Respondent
17
ppeared with attorney Frank Wesson. The Court hereby finds by a preponderance of the evidence that
18 espondent intentionally, knowinglyor recklessly engaged in repeated and unwanted contact with petitioner or
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member of Petitioner's Immediate family or household and thereby alarmed or coerced petitioner. The Court
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urther finds that It Is objectively reasonable for a person in Petitioner's sltuatlon to have been alarmed or
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oerced by the contact and that the repeated and unwanted contacted caused Petitioner reasonable
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pprehension regarding the personal safety of Petitioner or a member of Petitioners immediate family or
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ousehold; therefore
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IT IS HEREBY ORDERED that Respondent Is restrained (prohibited) from Intentionally, knowingly or
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ecklessly having contact, as directed below, with:
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d
etitioner
Other:
50 2STALKING PROTECTIVE ORDER Page 1 of 2
Exhibit A Page 1
Petitioner's Response
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1
ONTACT MEANS;
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All conditions listed below.
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Coming within 1000 It into the visual or physical presence of the protected person.
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Following the protected person.
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Waiting outside the home, property, place of work or school of the protected person or a member of that
6
person's family or household.
7 ] sending or making written communications In any form to the protected person.
S
speaking with the protected person by any means.
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] Communicating with the p rotected person through a third person.
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Committing a crime against the protected person.
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Communicating with a third person who has some relationship to the protected person with the Intent of
12 affecting the third person's relationship with the protected person.
13 Communicating with business entities with the Intent of affecting some right or Interest of the protected
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person,
15 Damaging the home, property, place of work or school of the protected person.
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Delivering directly or through a third person any object to the home, property, place of work or school of
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the protected person.
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IT 15 FURTHER ORDERED
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I
Respondent shall undergo a mental health evaluation by [Mental Eval Deadline] and undergo treatment
21 as Indicated by the evaluation.
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The court finds that Respondent Is without funds to obtain a mental health evaluation or treatment and
23
Is referred to Deschutes County Mental Health.
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25
/I
26
II
50 2 STALKING PROTECTIVE ORDE R Page 2 of 2
Exhibit A Page 2
Petitioner's Response
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THE COURT FURTHER FINDS
2
Respondent represents a credible threat to the physical safety of the protected person and the protected
3
person Is or was
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the spouse of respondent
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the parent of a Joint child with respondent
6 cohabltating with respondent
7
Q
a child or respondent or an Intimate partner of respondent
B
Findings In this section certify compliance with the Federal Violence Against Women Act, sections
922(d) and (g), prohibiting respondent from possession, receiving, shipping, or transporting any
9
firearm or firearm ammunition.
10 ] This Order Is of unlimited duration.
11
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This Order is effective until June 15, 2010 @ 9:45 am.
12
13
ERTIFICATE OF COMPLIANCE WITH THE VIOLENCE AGAINST WOMEN ACT; This Stalking Protective Order meets
14
he full faith and Credit requirements of 18 U.S.C. sec. 226S (1994). This Court has jurisdiction over the parties
15
nd the subject matter. The Respondent was afforded notice and timely opportunity to be heard as provided by
16 he law of this Jurisdiction. This Stalking Protective Order Is valid and entitled to enforcement In all Jurisdictions.
17
18
DATED this
f
day of March,
19
IS A. MICHAKL,AOLE
33
20
Circuit judge A. Michael Adler
21
0
Respondent was served with a copy of this order in the courtroom
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SO 2 STALKING PROTECTIVE ORDER Page 3 of 3
Exhibit A Page 3
Petitioner's Response
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IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF DESCHUTES
In the Matter of;
JOSEPH PATINODE,
Plaintiff,
vs.
ROBERT B. FOSTER,
Defendant.
Case No. 103T0028-MS
DEPOSITION OF HUGH PALCIC,
taken on behalf of Petitioner, pursuant to notice, at the
offices of Karnopp Petersen LLP, 1201 NW Wall Street,
Suite 200, Bend, Oregon, before Pamela M. Sylvester,
Shorthand Reporter for Perfect Word Reporting & Video and
Notary Public for the State of Oregon.
2
PERFECT WORD REPORTING & VIDEO (541) 308-2896
Exhibit B Page 1
Petitioner's Response
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B
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{
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No.1644
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APPEARANCES
For Petitioner;
OFFICES OF ROBERT FRANZ JR.
By: Hannah Meisen--Vehrs
P.O. Box 62
Springfield, Oregon 97477
For Respondent Robert Foster:
WESSON & DUNCAN
By: David W. Duncan
12725 SW 66th Avenue
Suite 101
Portland, Oregon 97223
For Sunriver Owners Association:
KARNOPP PETERSEN LLP
By: Kurt Barker
1201 NW Wall Street
Suite 200
Bend, Oregon 97701
Also Present:
obert Foster
Joseph Patinode
Reported By; amela M. Sylvester
shorthand Reporter
3
PERFECT WORD REPORTING & VIDEO (541) 388-2896
Exhibit B Page 2
Petitioner's Response
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IN EX
9
3 EXAMINATION BY:
PAGE
4
s. Meisen-Vehrs
5
5 r. Duncan
8
6
7 XHIBITS:
8
4
etter dated 4/2/08
6
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9
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14
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k
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PERFECT WORD REPORTING & VIDEO (541) 388-2896
Exhibit B Page 3
Petitioner's Response
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:50PM
No. 1644
.
0
HUGH PALCIC
5
1
HURSDAY, SEPTEMBER 23, 2010, 1:30 P.M., BEND, OREGON
2
3 HUGH PALCIC,
4 alled as a witness herein on behalf of
5
laintiff, having been duly sworn upon
6 ath by Pamela M, Sylvester, Notary Public,
7
as examined and testified as follows:
8
9 F,XAMINATION
10 Y MS. MEISNN-VEHRS:
11
.
r. Palcic, can you say your name for the
12
record.
13 .
he full name? Hugh Palcic.
14
.
nd what is your
occupation?
15 . work for the Sunriver Owners Association.
16
.
nd what is your title?
17 . urrently, assistant general manager,
18
. hat are some of your duties as assistant
19 general manager?
20 . s assigned I guess would probably be best.
21 I manage the community development department. I also
22 oversee the environmental department, and I oversee the
23 recreational department; however, there is directors for
24 oth of those who handle the day-to-day use of both of
25
hose departments.
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No.1644
.
1
HUGH PALCIC
Q. o you know the respondent Bob Foster?
A,
es.
Q.
o you recall having a conversation with
Bob Foster the week before April 2nd,
2008?
A.
es.
Q.
id you write a summary of your
recollection of that conversation?
A.
es.
Q.
o you have an independent recollection of
what was said during that conversation without referring
to your summary?
A. t's extremely vague. I have basics, but
the written summary, which I have read before, is the
recollection that I have.
(Exhibit 14 identified.)
Q.
kay. I'm going to show you what's been
marked as Exhibit 14.
Is this the summary that you wrote?
MR. DUNCAN: Can I see copy of that?
MS. MEISEN-VEHRS: Yes.
THE WITNESS: Yes,
BY MS. MEISEN-VEHRS;
Q. hen did you write that?
A, ou know, I don't recall Shortly after
the request.
6
PERFECT WORD REPORTING & VIDEO (541)
388-2896
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No.1644 .
2
HUGH PALCIC
Q.
as it shortly after April 2nd, 2008, the
date at the top?
A. don't recall the exact date,
Q.
as it around that date?
A.
t's around that date, yes.
Q.
s that your signature at the bottom?
A.
es.
Q.
ugh, can you read the statement into the
record?
A,
kay. It's dated 4/2/08. Last week, I
received a phone call from Bob Foster, Bob called to
inquire as to why, quota, authorized vehicle only,
unquote, signs were installed at the SROA Administrative
Building. He also wanted to know who authorized the
installation. I told him that to the best of my
knowledge, that our General Manger, Bill Peck approved
the installation. With regard to the question of why, I
told him that I could only speculate on an answer and
that he would need to pose that question to
Bill
Peck
when he returns from vacation,
I
asked Bob why the installation of signage
at SROA would be of concern to him and he explained that
he regularly drives through the parking SROA lot
(sometimes twice a day) and believes that the signage may
have been installed in response to his actions. I asked
7
PERFECT WORD REPORTING & VIDEO (591) 388-2896
Exhibit B Page 6
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JUH
No. 1644
.
3
HUGH PALCIC
him why he would drive through the parking lot of SROA,
He responded by drawing a parallel to a historical
reference of two confederate officers during the Civil
War that would ride around the union army in an attempt
to demoralize or confuse their opponent. In short to
show them that they could.
On Tuesday, 4/1/08, the Sunriver Chief of
Police visited my office to discuss the phone
conversation and asked me to write down my recollection
of that exchange. This is, to the best of my
recollection, what transpired relative to this matter.
Respectfully, Hugh Palcic. At the time, Director. of
Community Development, SROA.
Q.
s this an accurate summary of your
recollection of that phone call as your memory is today?
A.
eah,
MS. MEI$EN-VEHRS: That's all I have,
EXAMINATION
BY MR. DUNCAN:
Q.
r. Falcic, looking again at Exhibit 19 --
excuse me, for the record, my name is David Duncan. I'm
the attorney for the respondent Bob Foster.
A.
k-huh.
Q.
nd you testified that you know Mr. Foster,
Looking again at Exhibit 14, you said you don't remember
8
PERFECT WORD REPORTING & VIDEO (541) 388-2896
Exhibit B Page 7
Petitioner's Response
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No. 1644
.
4
4/2108
last week, I received a phone call flout Bob Foster .
Bob called to inquire as to why
authorized vehicle only signs were installed at the SROA Administrative building. 110
also wanted to know who authorized the installation
I told him that to the best of my
knowledge
,
that our
General Manager , Bill Peck approved the installation
.
With regard to
the question of why, I told him that I could only speculate on an answer and that lie
would need to pose that question to Bill Peck when he returns from vacation.
I asked Bob why the installation of signage at SROA would be of a concern to Will and
he explained that he regularly drives through the parking SROA lot (sometimes twice a
day) and believes that the signage may have been installed in response to his notions. I
asked him why he would drive through the parking lot of SROA
.
He responded by
drawing a parallel to a historical reference of two confederate officers during the Civil
War that would ride around the union arm y In an attempt to demoralize or confuse their
opponent. In short to show them That they could,
On Tuesday (
4/1/08
), the SR Chief of Police visited my office to discuss this phone
conversation and asked me to write down my recollection of that exchange
.
This is, to
best of my recollection
, what transpired relative to this matter,
Respectfully
J
~
Director of Community Development, SROA
1(
Exhibit 14
Exhibit B Page 8
Petitioner
' s Response
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U12
No. 1644
.
5
Hughes, et al, vs.
Foster
John McKenzie
February 16, 2011
Perpetuation
REPORTING
N DeocoNNNRENCINO
172 Et
8th Avenue
r;ugene, OR 97401
Original
File MCK1iNZIWOHNPRRP.TXP
Exhibit 26
iW/n
I
/.,tiri7lrgIt)
iwi1G
Ward tads
Page I
Exhibit C Page 1
Petitioner's Response
8/10/2019 Kasey Hughes
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:51 PM
No. 1644
.
6
Hughes, el at, vs.
rosier
Page 1
1
2
H THE
CIRCUIT
COURT OF THP STATE OF OREGON
3
R RHO FOR THE COHIITY OF OBSCHU*ES
4
5 In khO HOtter oft
HASAY HUGHES,
6
eeleloner,
7 ROBERT
d
B, FOSTER,
NO. IOST00)7NE
S
:e:47 ::::....
In the flatter of,
9 JOSRP1l PATHODE,
Peel Elonee,
10
nd He, JOaT002 SHS
11
ROBERT E. ROSTRe
n
epondanb,
12
13
Sd PPOSITION or DORM HCREHZIE
15
ebeuary 16th, 2011
16 Hadnoeday
17
Z,1S.H.
10
Appeet/ng by
Telephone)
19
ERPETUATION OF TEBTiHOIIY
the DEPOSITION OF oH11 HolEHTIE Ron taken
at the let offices of Hannah Heleen-Vebee, 720 0
Street, epringfiold, Oregon, before Robin
Cnuldt-purse, CAR-RPR, Certified 6htrthand Reporter
in and rot the State of Oregon.
Page 2
APPEA ASH OHS
Per the petitioner.,
Ha. HAHHAN HETSRN-VRHX%
700 B atroot
springfiel0, Ore90n 91477
5111141-5320
For the Reepondenti
"$SON A PUHCAH
12725 5H 66th Avenue, suite 101
Portland, Oregon 91223
602/2 E2-5122
BYI Het, PRANK S. 16555011
(Appearing by toleyhene)
AIX, Preronb,
145, ROBERT ROSTER
(Appeerinp by telephone)
Reported by,
ROBIN CAflIOY-OURMI, caR-RPR
CO REPORTINO 6 YXIEOCOHPEREIICIIIO
EUOEHE
41/405-0111
TOLL FREE 000/3
4
1-0907
McKenzie
y 16,1011
Page 3
7p091
HIT
HESE .........................................PACE
JOSH NP%ENTIE
BY HS. HSTSBH-Vpmm
d
BT HR. 112150N
21
EXHIBITS, hone
narked.
page 4
1
JOHN McXRNZIE,
2 having been first duly sworn 10 testify dm truth,
3 the whole truth, and nmhing but the Inith, wns
4 examined and testified as follows:
5
a
EXAMINATION
BY MS. ME1SP.
N-VHHRS:
e
. Mr
.
McKenzie
, t
his is hlaunah Melsen
-Vchrs.
9 Thls is going Lobes perpetuation deposition in the
in trial of Ktlsey Hughes versus Robert B, Poster mod
11
Joseph Palisade versus Robert B. Poster.
12
ou just had your discovery deposition
la taken, m
m
going to osk you some questions.
14 Remember that you're still under oath mid, even
is though you've answered the questions previously.
16 give its n ftill answer agoin, please.
17
. Okay,
ig . Can you please slate your full name?
19 A. John Bdwmd McKenzie.
20 Q. And sp ell your last
name.
21
. M-c-K-e-n-zri-e.
22
. And what is your current occupation?
23
. Mannger of plant operulions and
24 nraintellanc0.
25 Q. And where do you work?
Perpelnmlon
:.11 h1t .1 CIiphTJ
Exhibit 26
(1) Pages 1.4
Page 2
Exhibit C Page 2
Petitioner's Response
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012
:51 PM
No. 1644
Hughes, el al, vs,
Faster
Perpetuation
6,2011
Pape
7
1 . Wheaton Pmnclscan Healthcare.
2
. And how long have you held that Job?
3
. September of 2010.
4
. Okay. And con you tell nie briefly some of
7
your work history before That?
6
. Yeah. I was director-- I was plant
7
mmwger for Envision Architecture from September of
2006 to September 2010.
9
Prior to that I relocated from Bend,
Oregon, to \Vnterloo, and Then from December of 2006
to June of 2008 I was director of public works for
Sunriver Owners Association,
Prior to that I was director of facilities
for Weiss Memorial Hospital in Chicago, Illinois.
How far back would you like foe to go?
Q. That's fine. Thanks. Can you (ell me
your educational background? High school or
college?
A. Sonic college. I went through the Navy
20 nuclear propulsion program when I Was
lit line
service.
Q. Did you say some college?
A. Some college, yes, nm'am.
24
Q. Okay, And then the Navy?
25
A. Yes, ma'am.
Page a
Q. And you have It
high school degree?
A. High school diploma, yes, n ia ant,
Q. Cat you tell me what your main duties were
as the public works director for the Sunriver Owners
Association?
A. Sure. I was responsible for all
infrastructure operation and nminiennnce, which
included all roads, pathways, common areas, parks,
pools, Sunriver Association buildings - just about
anything inside the Sunriver boundaries with the
exception of water, sewer, and the cleetde service.
Q. Were you Inn supervisory role in that
capacity?
A. Yes, ma'am.
Q. How ninny people did you supervise
approximately?
A. I'm going to say approximately on average
161o20.
Q. And while you were the public works
director, did you cone to know Bob Poster who Is the
respondent in this case?
A. Yes. I had some interactions with him,
Q. Are you able to describe what he looks
like?
A. I cal, sure.
i Q. Okay. Go ahead.
2
. Oh, I'm sorry. lie going to use the words
3
"older than nie.` 50s, mid 50s maybe, Just
o speculating on ago. While mule, g rayish hair, long
s -- usually was in
it
ponytail or under
it bandanna.
6
Slender to average build.
7
One momen t, I need just a second.
a
, That's fine.
9
(Off-ore record discussion.)
to A. And I believe somewhere between five-ten
11
to six feet tall, as best I con recall.
12
BY MS. MBISBN-VEHRS:
3
Q. Do you know what kind of vehicle lie
14
drives?
Is
. An early 2000 while Ford pickup, standard
16
cab.
7
. And did you observe him driving in that
is
muck around Sunriver?
19
. Yes.
ao
. Can you tell Inc about some of the
21
encounters that you had with Bob Poster?
22
. We had m ultiple encounters with hint during
a3 mad construction going through stop paddles,
26
driving too close to (loggers, not complying w ith
as the direction of the floggers.
Page B
Daring snow removal he would pull out In
front of the snow removal equipment causing thorn to
take evasive action.
We would get phone calls from hint
complaining -- I would get phone calls and
voicemalls from him complaining about mad
construction activities That impacted his business
and how unhappy he was with those activities.
Q. I an going to address some of those one at
a lime,
A. Sure.
Q. Can you explain what it meals to go
through
it
stop paddle?
A. Sure. When we are doing --
MR. WESSON: I didn't hear that
question. Can lie explain what?
MS. MEISEN-VEHRS; What it means to go
through a slop paddle.
MR. WBSSON: A slop paddle?
MS. MBISEN-VEHRS: Yes.
MR, WESSON: A stop paddle. What are
you talking about?
MS, MBISEN-VEHRS: Well, that's the
question.
MR. WESSON; What's a stop paddle?
\tin-
1v irrIt.t r:
Exhibit 26
(2) Pages 5.8
Page 3
Exhibit C Page 3
Petitioner's Response
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No. 1644
.
8
el al, vs.
Perpetuation
Page
9
1
MS. MEISEN-VEHRS: I am going to have
2
John explain (hat.
a
THE WITNESS: Let me know when I can
4 begin.
5
BY MS. MEISBN-VEHRS:
6 Q. Go ahead,
7
A. Okay. During road construction, when we
e have to shut down a travel lane so that crews call
9 work on the lane sa fely, we position Baggers at
10
eilhercnd.
11
And they have -- you've probably seen
12
them, people standing out with poles that are 6 feet
13 ful l
that have 14-inch stop signs on one side and on
Ia the other side of that paddle is n slow -- eu lnrgcd
15 slow warning paddle.
16 We 0011 (hose slop paddles, and those are
17 to direct vehicles when it is safe In proceed and
1e
under the direction of those flaggers so that the
19
crews can work sa fely in the travel lanes.
go
o to answer your question what it means
21 to blow through the slop paddle Is is wh en (he
22
flogger communicates and when a certain amount of
13
vehicles go past, we slop traffic in one d'ueetlon,
26
le[ It clear, and then w e allow traffic in the other
25
direction to flow to keep continuity of traffic up
Page 11
1
MR. WESSON: Hannah, I have
it
question
2
in aid of hay objeclion. Just one question.
3
MS. MEISEN-VEHRS: Okay.
4
MR. WESSON: Old you see Mr. Foster
s blow these stop paddle signs?
6
THE WITNESS: Yes.
7
MS, MEISEN-VE HRS: Well, I believe
a
MR, WESSON: I couldn't hear him,
9 1 -
Immail.
10
THE WITNESS; Yes, I did.
11
MR. WESSON: Did lie answer or not?
12
THE WITNESS: Y es, I did.
1a
MR. WESSON: Okay.
14
BY MS. MEISEN-VEHRS:
15
Q. Okay. How often did you observe Bob
16
Foster driving tu
ough n stop paddle?
17
.
Oilce -- myself, once personally, but I
1e
received tmdtiple complaints Front my staff.
19
MR. WESSO N: Objection. So you only
20 saw him do it once?
21
THE WITNESS: Correet.
22
MR. WESSON: All right.
23 BY
MS. MEISEN-VEHRS:
24
Q. Nov, m oving on, can you explain what II
25
means to dart out In front of
it snowplow?
Page 12
A. Sure. During -- the one o bservation I
made
was, as we were removing snow on Beaver Drive
going north of Sunrlver Village towards Circle 1l,
about halfway up the road we observed Bob's truck
stopped at an intersection.
As we approached within 5010 100 feel of
(lint Intersection, Bob pulled out in front of its and
turned left causing my driver to take evasive action
by slumming on the brakes and [hen the snowplow
tripped and pulled us towards the shoulder.
Q. Did that put you inn dangerous situation?
A, Yes. When you have a 20,000-pound --
MR, WESSON:
Objection, Calls for a
conclusion,
BY MS. MEISEN-VEHRS:
Q. You can answer.
A. Yes. When you haven 20,000-pound truck
on a snow-covered road that has to slant on their
brakes, you know, it takes a long time for us to
stop, and when you're being pulled towards the
shoulder, II creates an even store dangerous
situation,
Q. Did you see Mr. Foster observing the
snowplow?
A. Yes, He looked directly at us.
Page 10
1
and down the road.
A
2
Al certain points we have to cut off ears 2
a
so
that we can keep continuity and as we rntnte the 5
4
sign form slow to stop. Bob would continue to drive
a
5 past, ignoring the stop sign that was being
5
6
displayed by the Bagger. That's what is meant by
6
7
blowing the slop piddle.
7
s Q.
nd did you on occasion personally observe e
9
Bob Foster blowing through the stop paddle? 9
10
A.
es. 10
11 Q. id that put you or your employees in
11
12
danger?
12
13 MR, WESSON: Objection. Calls for 13
Ina
speculation. Go ahead and answer the quest ion, but
14
15
I have an objection,
15
16
MS. MEISEN-VEHRS: That is fine. 16
17
BY MS. MEISBN-VEHRS:
17
Ile
Q. oahead,John.
18
19 A.
es. If vehicles aren't following the 19
20
direction of the fag safety crews, then the people 20
21
performing
the work are assuming one thing is going
21
22
on when something else is going on. With their back
22
23
10
traffic at times, it is an unsafe silodion. We
23
26
like to know where the vehicles are at and how they
24
25
are proceeding.
25
%I
in-I; :;eriptJ:,
Exhibit 26
(3) Pages 9.12
Page 4
Exhibit C Page 4
Petitioner's Response
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u
No. 1644
.
9
Hughes, el iii. vs.
Ptrpelualion
hfeKenate
Foster
Page
13
1
Q. Did you ever get complains from your
2
employees nboul Bob Foster?
3
. Yes.
4
Q. Approximately how minty complaints do you
9
think you received?
6 A.
More than 20 in my year and a half is
7
director,
e
, Were the complaints related to safety?
9 . Yes.
10
MR. WESSON: Related to who?
11
MS. MHISEN-VEHRS Safety.
12
MR. WESSON: I'm sorry, Hannah. Did
13
yousOyStacey?
Ia
MS. MBISEN-VEHRS;
Their safely.
15
MR. WESSON; Olt, safety. 'just
16 couldn't hear. I understand now. Go ahead.
i7
BY MS. MEISBN-VEHRS:
is Q. Did you ever observe Mr. Fos ter parked
i9
behind the Sunriver Owners Association
zo administration building?
z1
. Yes.
22
Q. About how oRen did you see him back
23
there?
U A . Three or font tines.
25
. Did you ever see him speed out of the
Page
4
1
parking lot?
2
. Yes.
3
Q. About how many tines?
4
. I observed it once.
5 Q. Did you ever see other mem bers of tie
6
community doing similar behavior?
7
A. No.
8
. Was there a time that you posted signs in
9
back of the Sunriver Owners Association
10
adalnisimlive building?
is
. Yes.
12
Q. Cult you remember what the signs said?
13
. To the bust of my recollection, they said
1a
Sunriver SROA vehicles only. Something to that
is effect. I may not have the exact wording conect.
16
Ii's been quite a while.
17 Q. Why did you post those signs?
is
. Indirect--it was adirect action of
19 Mr. Foster's parking behind the building or --
2o
there's a snmll drive on the south side of the
21
administration building,
22
Q.
So it was to address the problem of
23
Mr, Foster parking in the back?
24
.
Yes. And on that access road on tile south
25
end of the building,
d
Pogo
16
1
Q. Were you ever aware of why Mr. Foster Was
2
doing that?
3
MR. \VBSSON:Objection. Calls for
4
speculation.
s BY MS. MBISBN-VBHRS;
6
Q.
You can answer if you know.
7
.
Okay. I can relate what was told to me
0
during the approval process.
9
MR, WESSON Objection. No hearsay.
to BY MS. MBISEN-VEHRS:
11
Q. Were you over told by Mr. Foster why lie
12 was doing that behavior?
13
A. No.
14
Q. Okay. Fin going to move on. Did you ever
is have a conversation with Mr. Foster at the local
16
grocery store about his behavior towards your crew?
17
. Yes.
to Q. Can you recall what Mr. Foster said to you
19
to start (hilt conversation?
20
. Beat of my recollection was that I was
21
getting lunch at the country store and Mr. Poster
2z
approached me with some complaint about the slurry
23
sealing operations that were going on tit the time.
24
1 told him that I really wasn't going to
25
entertain any of Iris complaints at the tline until he
page 16
1
could demonstrate That he could net safely around any
2
Crew.
3
He said something, which I don't remember,
4
but -- and then as he was walking away from me --
s that lie could do anything lie wanted because of his
6
connections In the community.
7
At that time I basically fold him that if
S he was going to have that altitude Ihal If tiny of my
9
crew were hurt then I w ould deal with it myself,
to And at that point he walked away.
11
And then Ihat conversation was related to
12
the general manager of the SOnriver Owners
13
Association,
13
, Let mite clarify a bit. Did you Zell
15
Mr. Poster that your crew was instructed to report
16 complaints to the Sunriver police?
. Yes. Yes, rna'ani. They were also
is instructed not to engage with him.
19
Q. Okay. So did he haven response to your
20
comment that you were telling your crew to report
2 his
behavior to the police? Did Mr. Foster have
it
22
response?
23
. Best of my recotecllon, that Is when the
2a comment came out that he wasn't worried because he
25
had connections in the community.
Ii,,
(4)
Pages 13 - 16
Bxhiblt 26
Page 5
Exhibit C Page 5
Petitioner's Response
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:52PM
No. 1644
Hughes, et al. vs.
Perpetuation
John
Foster
Page
17
A
Q. Did he explain what those connections
2
were?
3
. No,
4
Q. Did you know w hat lie meant by that?
5
. I had assumptions.
6 . Well, what did you Think lie memo by that
7 Al
the time?
e
MR. WESSON: Objection. Calls for
9
speculation. Thai's truly an objectionable
10
question. Hannah, What do you think?
11
BY MS. MUISEN-VBIIRS:
12
. Just a second, Jolla.
Don
l answer that
13
just yet,
14 MR. IVESSON If you Asked do you know,
x5 that might be a beater way of asking the question
16
but--
17 MS. MBISEN-VEHRS: Frank, your
1e
objection is on the record. Tha t is fine.
1g
BY MS. MEISEN-VEHRS:
20
. Okay. John , did you -- at this lime in
21
your tenure as public works director, did you
az believe that Foster had the ability to hurt one of
as your crew members?
24
. Yes.
25
MR, WES SON: Objection. Calls for
Page Is
1
speculation.
2
MS. MEISEN-VEHRS: This is About his
3
belief At the lime about whether Foster was capable
4
of hurling somebody. Th at's relevant,
s
MR. WESSON: A human being can hurt a
6
human being. What ha s that got to do with this
7
case? There's been no charges filed by the Smviver
a Homeowners Assoclnllon against Bob Poster. You are
9 just trying to trump up charges, Hannah.
.0
MS. MEISEN-VIdHRS ; Well, this case is
.1
about Mr. Poster's stalking behav ior, so it is
.2
absolutely relevant to this case.
.3
MR, WESSO N: What has safely got to do
4
with stolking behavior?
5
MS, MEISBN-VEHRS: What do you think
.6 they ore afraid of? That's the ultimate que stion.
.7
Now, if Poster was displaying behaviors that he was
.a capable of horning somebody, then that is relevant
g And be can Answer of his own belief about that at
o the lime based on his observations.
1
MR. WE SSON: Well, again, I object for
2 all the reasons I have slated.
l3
MS, MEISEN-VBH RS:Okay. That Is
4 Eno.
s BY MS. MRISEN-VEHRS:
1
. to ahead, John,
2
A. Can you repeat the question one more time,
3
Hannah?
4
. Did you believe at the time that you w ere
s serving as director of public works Itint Bob Poster
6
was capable of hurting somebody on you r crew?
7
. Yes.
e
. Was that based on the behaviors that you
9
personally observed from him?
10
,
Yes.
11
Q, Did you report your concerns about Bob
iz Foster to anyone at the Sunrlver Owners Assoclalion7
13
A. Yes. The general manager, Bill Chapman.
14
Q. And did you report them to the police?
Is
A. Yes. We did shake some reports to the
16
police,
1v
MR. WESSO N: In aid of my objection, I
10
have a question. Hannah.
19
MS. MEISEN-VEHRS What Is It?
20
MR. WESSON: When did you report your
21 opinion that he could hurt people to the Sunriver
22 Pollee Peparmwnl7
23
MS. MBISEN-VEHRS: I think your
24
putting words in his mouth. I think he rep orted his
25
concerns but. John, go ahead and answer when you
Page
20
1 made your reports.
2
THE WITNESS: As I staled earlier, we
3
node reports when he didn't obey the slop paddles.
4 and we explained w hat stop paddles were e arlier.
5
You know, those no legitimate safely concerns.
6
MR, WESS ON: Ijust want to know when.
7
February 12th? July 3Ist? December257 When did
u you report them, and the year, by the way?
9 THE WrTN
BSS: The year would be 2007.
Io
I can't give you an exac t date from three and a half
11
years ago. I don't think I can give you that exact
12
dale.
13
MR. WESSON: Thank you,
4
BY MS. MEtSEN-VEHRS;
15
. The year is fine, John.
16
. Sure.
17
Q. Did you ever observe Bob Fo ster
1e
interrupting a traffic stop that was be ing conducted
lg by the Sunriver police?
20
A. No,
21
Q. Did you over see or hear Bob Foster
22
yelling at the Sunriver police?
23 . No.
24
Q.
Okay. Do you have the statement in front
25
of you that you prepared?
grin .It-:icipot
,
Exhibit 26
(5) Pngcs 17-20
Page 6
Exhibit C Page 6
Petitioner's Response
8/10/2019 Kasey Hughes
31/59
u
012
:53PM
No. 1644
.
1
Hughes, et al vs.
PerpeNntlon
John hlcKenxte
Poste.
February 16, 2011
Pago
2I
rage 23
1
A. do.
1
questions. Let'sjusI pickup right w here we w ere.
2
Q. kay, Does that statement at the lop say
2
Your document -- what's the exhibit number by the
3
Statement Regarding My interactions with Bob Poster
3
way, Hannah? H annah, what's the exhibit number?
4
as Director of Public Works for Sunriver Owners
4
MS. M EISBN-VBHRS: Well, I lmven'i
s Association?
s
given it an exhibit number because it hasn't been
6
A.
t does.
6
entered into evidonce.
7
Q.
nd that's four pages long?
7
MR. WE SSON; You're going to save it
0
A. es, ma'am.
a
for trial. Right?
9 Q.
id you drat that statement yourself?
9
MS. MBISEN-VBHRS: Yes.
10
A.
es, ma'am. 10
(Off-the-record discussion.)
11
Q.
nd was that based on your recollection --
11
12
your independent recollection of the events that
12 EXAMINATION
13
happened while you were public works director?
13
BY MR. WESSON;
14
A.
es, ma'mn.
14 Q.
ll right. I've got some questions about
is Q. nd is that an accurate reflection of your
Is
this statement, Mr. McKenzie.
16
memory?
1s
A.
lt-huh.
17
A. s best as it can be, yes.
i7 Q.
id anyone ask you to prepare this
10 MS. MBISEN-VBIBtS Okay. So I'm going
10
statement?
19
to submit to enter (lint document into evidence.
19
A.
es.
20
MR. W ESSON: W ell, I'm going to object zo Q.
ho nsked you to prepare it?
21 to the introducllon of it into evidence because it
21
A.
niaiver Police Department.
22
contains numerous examples of hearsay.
22
Q.
ho specifically at the SunriverPolice
23
And he says it's accurate. How does
23 Department?
24
he know it's accurate when he Is reporting what
24
A.
believe it was Sergeant Palaode.
25
other people told him?
25 Q.
nd did lie discuss -- did you discuss with
Page 22
Page 24
1
So I question the veracity of the
i
him what the statement should contain?
2
document in general. For example, lie talks about
2
A.
o.
3 (here are phone calls and votcemails received 3
Q.
id you review the statement
with
him
multiple times during my time as director, so that
4
before you Finalized It?
5
means these phone calls woro
between
December of'06
5
A.
o.
6
and June
or OR,
and the peillneht
issues
permining
6
Q.
nd when you finished preparing it, did
7
to Mr. Foster occurred just prior to June
'08,
and
7
you send
It
to him?
a
most
of
this stuff that he ha s testified to--tile
0
A.
faxed it to the Sunriver Police
9
slurrying of the roads and
so
for(b
--
occurred in
9
Department.
10
07.
10 Q. nd were
you
asked to make any revisions
11
So
this doctinent is
fraught with
ti
to It?
12
inaccuracies, inconsistencies, and hearsay evidence,
12
A.
o.
13
so I
Object to it.
13 Q. id you
fax this
on
May 13, 2010,
at about
14 MS. MEISUN-VBHRS; Well,
my only
14
9:19
in the morning?
is
response to that would be that he has testified as
xs
A.
believe was the 13th of May.
I can't--
16 to the details thnt are contained in this document, 16 Q.
ay 13th,
20107
17 and he has testified as to the veracity
of
the
17
A.
eah.
is
document, but we can just leave that for trial and
18 Q. ll
right.
Let s
see. Bear with
inc.
I'm
19
thejudge.
19 just looking to--
How
many direct conversations did
20
So I
have no further questions right
20
you
have face to face-- not over the phone
-- with
21
now, John.
2
1
Bob
Poster during the year and a half that
you were
'22
THE WITNESS;
Okay.
22
them?
23 MS. MBISEN-VBHR S: Frank, do
you
have 23
A.
ne face-to-face interaction.
24
any questions?
24 Q. nd when was that?
26
MR.
WESSON: Yeah,
I
do have some
25
A.
hat was
lie
Incident in (he Sunriver
.h,i-ll.aeripria
Exhibit 26
(6) Pages 21.24
Page 7
Exhibit C Page 7
Petitioner's Response
8/10/2019 Kasey Hughes
32/59
page 21
1
Country Store.
2
. Okay. So you noverhad any oilier than
3
that; just that one?
4
. Correct.
5
Q. Now, how many telephone conversations did
6
you have with him?
7 A. More than 20 that one summer of2007,
s Q. Thal was the sunmler of '07?
9
. Yes.
10 . And that was dealing mainly with the
ii slurrying of the reads. C orrect?
12 . And the other mad constriction events,
is yes.
19
. So did you slurry all the toads iii
1s Snnriver that stlnliner?
16
A. No.
7 Q. Do you remember the roads that you did
10
slurry?
is
. There were opproximntely 30 cul-de-sacs
20
that got slurry seated.
2
. Cul-de-sacs? How about main roods, like
22
Beaver Drive or Cottonwood Drive?
23
A. We did overlay on River Road that summ er,
4 There was a few other projects. I don't remember
as exactly what they were.
Pegg 26
1
. So I'll ask you more qu estions here. Lei
2
tile see here. lain asking questions. I've got to
3
call you back. Goodbye,
e
o my wife called Inc on my cell phone, so
s forgive ate.
6 . )understand.
7 MS, MEISEN-VHHRS: Frank, have you
e been receiving other phone calls during this time?
9
MR. WESSON: Occasionally I gel a
10 phone call, yeah,
11
M. MEISEN-VEHRS: And who are they
12 from?
a MR. WESSON: N one of your business.
14
MS. ME ISEN-VEHRS:Well, if somebody
Is
is having conversations with you during testimony,
16 it is relevant.
17
MR. WES SON; That was my w ife. Ijust
is cut him off. So I'm talking--
19
MS. MEISEN-VEHRS: Who else has
20
called?
MR. WESSON; Hello?
MS. MEISEN-VEERS: Are you talking to
me?
MR. WESSON: Yeah, Are you there?
MS. MBlSEN-VEHRS: Who else has
No. 1644
.
2
John McKenzie
February 16,2011
Page 2]
1
called?
2
MR. WESSON: None of your business.
3
MS. MEISIBN-VEHRS : I'm not going to
4
ask what you talked about, but I have it right to
5
know if you're getting information from somebody,
6 from Some Outside source.
7
MR. WESSON: I'm going to move on with
a my questions.
9
MS. MEISEN-VEHRS: All right, We will
in talk later.
ii 13Y MR. WESSON:
1z
Q Let's see here. Did you make nrecord of
13
(hose 25-phis phone catls that summer of 20077
14
A. No,
i5
. Did you make any personal reports to the
is Sunriver Police Department yourself)
17 . Concerning?
is
. Bob Fasler-
19
. Yes.
20
Q, When did you m ake those reports?
21
. During2007.
22
Q. Do you know when during 2007?
23
. That's almost four years ago. I co uld not
24
give you all exact date. Those--
25
.
(Inaudible) of those phone calls?
Page 28
1 A. Not by me. You could ask the pollee
2
department if they made a record.
3
. And Who d id you inik to at the police
4
department?
5
. The typical person that would answer the
6
phone was the officer manager at the police
7 department.
8
Q.
Okay. The same an swer that you gave in
9 your discovery deposition. Correct?
to . (believe so.
it
. Okay. Do you have any (raining in menial
12
heplthcam?
13 . No.
4
. Are you a co llege graduate?
is A, No,
16 . What's the highest education you have?
19 Are you a high school graduate?
Is A. Yes.
i9
. Did you discuss your testimony with anyone
20
prior to this deposition today?
21
A. No.
22
Q. You had no d iscussion with anyone about
23
what your testimony might be?
24
. No. The only discussion 1 had was date
25
and lime.
u
012
:53PM
el al. vs.
Perpcluatlon
}i i
0
, :
w, ipl
Exhibit 26
(7) Pages 25.28
Page 8
Exhibit C Page 8
Petitioner's Response
8/10/2019 Kasey Hughes
33/59
u .
: 53PM
No. 1644
.
3
Perpetuation
l. vs.
Pace 25
1 . On the paddles -- on the stop paddles, did
2
you see any of those vlotations lint you said
a Mr. Poster violated -- the slop or slow?
e
know what you are talking about. I
S
didn't know they were called slop paddles, but 1
6
know that now, and I know what you're lofting about.
7
Did you see Not ram -- blow past a stop
8
paddle?
9
. Yes.
10
. And whore did you see that?
1i
A. We were on Beaver Drive,
2
Q. How far away were you?
13 . Probably 10 feet.
4 . So were you In a vehicle?
16
. No. 1 was standing on the road.
16
. And usually those people stand in the
17
middle of the road. Correct?
8
. Typical opera lion, yes.
19
. On this day in question, do you remem ber
20
when that was -- the date of Itiol?
21 . I do not remember tile exact date, no.
22
Q. Was It a sunny summer dny?
23
. 11 was n spring day, but it was sunny.
24 Typically alt road construction was done before
25
Memorial Day,
Page 30
1 Q. So you do your road construction before
2
Memorial Day?
3
A. Yes.
4
. And is the weather usually sunny or miry
s then?
s
. Central Oregon. take your pick.
7
. All right. The same question: Was it
8
sonny or rainy?
9 . As I sold just it
mimr(e ago, It was sunny.
to We don't do road construction during the rain.
ai
. Okay, And you said--did anyone say
iz anything to Mr. Poster when he blew through the stop
Ia paddle?
4
. No. It's not possible to do that.
5
. Well, did you make
it note of his license
16 plate cumber?
7
. I cmddn't hear you. Could you repeat the
to question?
I9
Q. Did you make a note or record of his
ao vehicle license plate number?
21
. No.
22
, The instructions that-- sometimes those
13
stop paddle people sometimes will tell someone to go
14
ahead oven though 11 says stop. Is that correct?
as
. I've never seen that instance.
John McKenun
February 16,2011
Page o t
1
. I've experienced it m yself.
2
,
Well, I can soy --
3 MS. MEISEN-VEHRS: Hold on. Hold on.
4
Let John finish his answer.
5
, Those individuals are trained by the
6
Oregon Deparimenl of Transp ortation fag program,
7 and that curriculum always states that never have
a anybody proceed with a stop paddle displayed, so If
9
you observed that, you didn't observe it by my crow.
to BY MR. WESSON:
ii .
So your crew had that iraining7
it
A. Yes.
13
. And the person that was holding ilia stop
14
paddle (hilt day, do you remember who that was?
is
. I do not remember, no.
is Q. Would lucre be a record of who that person
17
was that day?
in
. Probably not.
9
. Is there n chance some might have received
ao the training and some might not have received the
21
training?
22
MS.
MgISBN-VEHRS: Objection. That
23
calls for speculation.
26 BY MR. WESSON:
as
. So nil your people had the training?
Page 32
1
. Before they can act as Ragmen, yes.
2 That's the official title,
3
Q. (Inaudible) were they Sunriveremployees?
4
. Sunriver Owners Association employers.
e
MS. MBISBN-VBHRS: Sorry, Prank.
6
You're going to have to repeat yo ur question.
7
BY MR. WESSON:
a
. Are these regular employees of tine
9
Sunriver Homeowners Association?
In
A. By regular do you mean fulllime employees?
11
, Well, not necessa rily fall time, but they
12
were employees; not temporaries or anything like
13
liat?
i4
. Ohl, no. They are rogalur emp loyees.
1s
Q. All right. Do you remember when It was
16
that the incident with the snowplow occurred?
7
A. Yeah. It would have been the winter
18
between 2007 and 2008,
19
Q. Okay. And what do you mean that the
20
snowplow tripped? What does That mean?
21
. Not to gel too technical, but you would
22
have it
snowplow that is o il all arlieulating head. and
23
that head is sensitive to vehicle -- chmnges is
24
vehicle direction. And if you have to make no
25
evasive maneuve r, that blade can dig into the
.\lln.tl
Exhibit 26
(8) Puree 29 -32
Page 9
Exhibit C Page 9
Petitioner's Response
8/10/2019 Kasey Hughes
34/59
u
012
:54PM
No. 1644
.
4
Hughes, al
HI, is,
Perpetuation
Jahn
Foster
Page 33
asphalt during that maneuver and at that point It
will ae( as all anchor and will pull the vehicle to
one dlreelion or the other depending on the position
of the steering wheel.
MR. WESSON: Okay. What I'd like to
do now is I would like to talk to my client, so I'm
going to put you on hold mud get in touch with my
client. Okay?
THE WITNESS: Okay,
MR. WESSON: He can hear me saying
this, so I'm going to cull him. All right? So I'm
going to put the phone on hold while I talk to him,
MS. MBISBN-VEHRS: Okay, We'll just
taken short break. We will be here.
MR. WESSON: Dan'[ hung up. Inm just
going to pill you on hand.
(Recess: 3:12 to 3' 15 p.m.)
MR. WESSON: Are you there?
MS. MRISEN-VEHRS: We fire here.
THE WITNESS: lam hem,
MR. WESSON: I've got
it
line flashing
here. I'm trying to get it dealt w ith, Bear with
Inc. All right,
BY MR, WESSON:
Q. So I've got a couple more questions,
Page
34
Mr. McKenzie,
A. Ub-huh,
Q. So 11 was in the spring of'07 (tint the
road slurrying began, is that right?
A. As every year, yeah, in the spring-
Q. And did you have any Issues with the
slurrying being too soft and getting on cars or
slicking to iho wheels of cars and causing some
9
problems with peoples' vehicles?
10
MS. MEISEN-VEHRS: I am going to
Li
object. That is irrelevant.
L2 MR. WESSON: Well, it is not
13
Irrelevant. It is very relevant because It dents
L4 with the issues, and you will we it unfold hen: in
is a minute when I ask the rest of my questions.
16
MS. MBISEN-VEHRS: Wall, go ahead and
17
ask the rest. 1'mjusl sorting my objection.
is
BY MR. WESSON:
Q. So were there such issues?
A. Not during my term as director. Maybe
before my --
Q. There weren't some Issues dealing with
Sunrlver having to paint vehicles because of Ilia
slurrying geeing on the vehicles?
A. I believe you're referring to an incident
rage 35
I
that happened before I was public works director, so
2 1
can't speak to that issue.
3
. All right. Bul did nnylhing like Ihnt
4
happen when you were the director of public works?
5
A. No, no.
6
Q. All right. Do you remember one of the
7 entrances to Sunriver being blocked or -- blocked
a off because of slurry -- the stickiness of the
9
slurry?
10
A. Not during my term as director.
11
Q.
Okay.
12
. The Incident you ore referring to happened
13
prior to me arriving.
14
. Okay. All right, Let me see If I've got
15
nay more questions here.
is
ll right, On the issue of (ht posting of
11
the signs behind -- or a sign was posted to Inuit
is vehicles using that particular road around the
19
Snnrlver Homeowners Association building, Correct?
20
. Correct.
21
. Could anybody use it prior to that sign
22
being posted?
23
MS. MEISEN-VEH RS: Objection. Calls
24 for speculation,
2s BY MR. WESSON:
Page 36
1
. Well, if (here wasn't any sign, I suppose
2 anyone could use it. Right, Mr. McKenzie?
3
MS. MEISEN-VEHRS: You can answer
4
that. but my objection stands.
s
. The intended use of dial road was for
6
company vehicles.
7
BY MR, WESSON:
S
. But (here was no sign saying it was
9
limited to that, Correel?
to
. Conceal.
Q. All right. So there wou ldn't be nnylhing
12 wrong with someone other than an employee of
13
Smariver Homeowners Association using that road?
14
MS. MEISEN-VEHRS: Objection. Calls
is for speculation again. He doesn't have personal
16 knowledge of that.
17
BY MR. WESSON:
Ie
. You worked in that building, didn't you,
19
Mr. McKenzie?
20
A. I did not. I worked in the public works
21
building, which is directly to the south.
22
Q. How Far Aw ay? 50 feet? 100 feet?
23
. 50 yards.
24
. All right, 50 yards, 150 feet. So who
25
ordered --Did you put those signs up yourself, or
h1im1A3
,
:ripu,
v
Exhibit 26
(9) Pages 33 - 36
Page 10
Exhibit C Page 10
Petitioner's Response
8/10/2019 Kasey Hughes
35/59
8/10/2019 Kasey Hughes
36/59
u
012
:54PM
No.1644 .
6
MICHAEL ALLEN KENNEDY
1 3
1
TN 7HE CIRCUIT COURT OF Tilt STATE OF OREGON
1
MICHAEL ALLEN KENNEDY
2
FOR THE COUNTY OF DESCIIUTES 2
called as a Witness on behalf of Respondent, being
3 JOSEPH PATHODE,
3
first duly sworn to tell the truth, the whole truth and
4 Petitioner,
4 nothing but the truth. was examined and testified as
5 ys,
Case
HO,
105T0028415
S
follows;
6
ROBERT B. FOSTER,
6
EXAMINATION
7 Respondent.
7
Q.
BY MR. WESSON)
hief Kennedy, Would you
B KASEY HUGHES,
a
state And spell your name for the Court reporter.
9
Petitioner,
9
A.
kay.
t's Michael Allen Kennedy,
10
Vs.
Case No. 105T0027-MS
10
R-I-C-H-A-E-L, A-L-L-E-N, K-E-H-
N-
E-P-Y.
11
ROBERT B.
FOSTER,
11
Q.
ou understand I'm going to take your
12
Respondent,
12
deposition today?
13 13
A.
understand.
14
14
Q. nd it's due to the two stalking alders that
15
DEPOSITION
OF
MIjcAEL
ALLEILkEHHEOY J.5
officers Patnode and Hughes filed against Bob Foster.
16
commenting at 9:30 as, on Tuesday, June 15, 2010, at
16 Are you aware of that?
17
591 S.W. Hill View Way, Bond, Oregon 7702, before
17
A. M .
16
GENIE L.
ELLEY,
.P.R., C.M
,
.S.R.
90-0149.
16
q.
.
going to ask you A series
of
questions
19
19
regarding those Stalking orders.
20 20
Do you understand that?
21
21
A,
understand.
22 22 Q.
f at any time you don't understand one of my
23 23
questions, please say so and I will repeat it or
24
a
,
RF
NO . :
365
24
rephrase it until you do understand the question.
25 25
Do you understand this rule?
1
PP
EAA I10Et
flE DO: N
EI,
2
per Petit n ra :
3
ROBERT
E. FRANZ,
JR,I ESQ.
730 a Street
4
Springfield, Oregon 97477
5
For Res e
n,leaL
6
FRAMK N. WE55011, ESQ.
We son Carlson and swanlund
8
Foreland,
Oregon
oa
97223
9 Also Present
:
Kasey Hughes
10 Jo eyyh Patnode
IWbe
't Foster
11
12
13
T
H
D
14
EXAMINATION
ax
:
15
MR.
WESSON
16
17
Ei ISITB
FOR
IoFlnIFr.c.ATXDU
16 NONE
19
20
21
22
23
24
25
1 , do.
2
.
f at any time you don't hear one of my
3 questions, please say so and I will repeat it to ensure
4 that you do hear it.
5
o you understand that?
6
.
understand.
7
.
ll of your answers must be verbal since the
8
court reporter cannot take down non-verbal cues, such
9 as a nod of the head or shrug
of
the shoulders.
10
o you understand that all your responses must
11 be stated in words?
12
.
do,
13
.
ou most speak clearly and distinctly, Do you
14 understand that?
15 .
understand.
16
.
f you do not knew Cho answer to a question,
17 simply state you
do
not know. I do not expect you to
18 gulls or to speculate
as
to responses.
19
o you understand that role?
20
.
understand.
21 . leas ,
make sore your answers are clear for
22 the record so the court reporter can accurately
23 transcribe each of the words you state.
24 On you understand that?
25
.
understand.
a
3
PAGE
kennedy
CASCADE COURT REPORTERS (541) 386-5664
Pages I to 4
Exhibit D Page 1
Petitioner's Response
8/10/2019 Kasey Hughes
37/59
u
:55PM
No. 1644 .
7
MICHAEL ALLEN KENNEDY
1 ,
lease wait until I finish each of my
2 questions before answering, and k will wait until you
3 finish each of your answers before I ask another
4 question. 1n this Way the curt reporter keeps a clear
5 record without interruption.
6
o you understand that?
7
.
understand.
6
. we will take a break about ovary hour to give
9 the Court reporter and all of us a chance to refresh
10 ourselves, but if you need a break prior to that time
It please request one and We will take one.
12
o you understand that?
13
.
understand.
14
. ou Understand that the deposition will be
15 transcribed by the court reporter and that everything
10 said here today will be recorded?
17
o you understand that?
1s
. understand.
19
,
o you understand that at trial all the
20 testimony given here today Will be available in written
21 form and if I ask you a question at trial that I ask
22 yoU today, you may be asked to explain or otherwise
23 account for any difference in your answers that May
24 occur.
25
o you Understand that?
1
.
understand.
2
. o you understand that
your
testimony is being
3 given under oath as
if you were in a court
of
law; that
4 is you have been sworn to tell the truth and if you
5 fail to do so adverse consequences could result?
6
o you understand that?
7
.
Understand,
6 . o you understand each and every one of these
9 rules as I've stated them?
10
.
do.
11
.
ou understand that these rules assure that if
12 I ask a question and you give an answer to that
13 question, it will be assumed that you understood the
14 question as posed and your answer is Intended to be
15 responsive as rendered?
16
o you understand this statement?
17
. ould you read it again, please?
16
.
ure. you understand that these ru
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