AlaFile E-Notice
To: DEAN MICHAEL GREGORY
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
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
DOCUMENT 180
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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
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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
Gregory C. Morgan
Charles P. Gaines
Gaines, Gaines, & Rasco, PC
127 North Street
Talladega, Alabama 35160
/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
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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
Erphas
.htrU,A0
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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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