motion for summary judgement by kanawha stone containing the deposition and resume of mark halburn

7/25/2019 Motion for Summary Judgement by Kanawha Stone containing the deposition and resume of Mark Halburn

1/96

a

.

cI

~ ~

.

IN THE CIRCUIT COURT OF PUTNAM COUNTY, WEST V I R G I ~ :

s:..

.- )

DOLORES HALBURN

a n d ~ \ ;S.

MARK

HALBURN,

t ~

Plaintiffs, ~

v.

CITY OF HURRICANE, WEST VIRGINIA,

a municipal corporation, BEN NEWHOUSE,

individually and in his capacity as City Manager

for the City of Hurricane, CLEVELAND

CONSTRUCTION, INC. dba Cleveland

Construction, Inc. Of Nevada, and KANAWHA

STONE COMPANY, INC.,

Defendants.

Civil Action No. 07-C-298

DEFENDANT, KANAWHA STONE COMPANY, INC. S,

MOTION FOR PARTIAL SUMMARY JUDGMENT

NOW COMES the Defendant, Kanawha Stone Company, Inc. ( Kanawha Stone ), by

counsel, Patrick

T.

White and Huddleston Bolen LLP, and moves this Court

to

grant it partial

summary judgment against the Plaintiffs pursuant to Rule 56

of

the West Virginia Rules

of

Civil

Procedure. Because the record evidence clearly indicates that the Plaintiffs' property value has

increased, there

is

no genuine issue of material fact concerning their claim for diminution of

property value. Consequently, this Court should grant Kanawha Stone summary judgment on

the Plaintiffs' loss

of

property value claim. Furthermore, because discovery concerning the

Plaintiffs' nuisance claims

is

ongoing, Kanawha Stone reserves its right

to

file a Motion for

Summary Judgment on the same at the completion of said discovery.

The Plaintiffs initiated the above-styled civil action against Kanawha Stone asserting a

private nuisance claim. The Plaintiffs claim that they were exposed to excessive light, smoke,

dust, and noise from the construction

of

a Wal-Mart in Putnam County. They allege that they

{C0074483I}

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suffered annoyance, inconvenience, mental anguish, diminution of their capacity to enjoy their

real estate, and diminution

of

the value

of

their real estate.

Although the Plaintiffs claim that the Defendant's activities devalued their real estate, the

record evidence in this case indicates exactly the opposite. Mark Halburn testified at his

deposition that the value

of

the subject property has actually increased. See deposition of Mark

Halburn at 118, a copy a which is attached hereto s Exhibit A.

Discovery on the reasonableness of Kanawha Stone's activities is ongoing, as IS

discovery concerning the Plaintiffs' allegations of annoyance, inconvenience, mental anguish,

and diminution

of

their capacity to enjoy their real estate. By Agreed Order, both Plaintiffs will

undergo an independent psychological examination on September 11, 2008.

Law and rgument

Rule 56(c)

of

the West Virginia Rules

of

Civil Procedures provides, in pertinent part, as

follows:

The judgment sought shall be rendered forthwith

if

the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits,

if

any, show that there is no genuine

issue

as to

any material fact and that the moving party

is

entitled to

judgment

as

a matter of law.

W.

Va. R. Civ. P. 56(c).

In

interpreting Rule 56, the Supreme Court

of

Appeals

of

West Virginia

has held that summary judgment is proper only if, in the context

of

the motion and any

opposition

to

it,

no

genuine issue

of

material fact exists and the movant demonstrates entitlement

to judgment as a matter

of

law. Syl. Pt. 2, Gentry

v.

Mangum, 466 S.E.2d

171

W.

Va.

1995).

Furthermore, the Court has explained that

a

party who moves for summary judgment has the

burden

of

showing that there is no genuine issue of fact and any doubt as to the existence of such

issue is resolved against the movant for such judgment. Syl. Pt.

6,

Aetna Cas. Surety

Co. v.

{C0074483.1}

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3/96

Federal Ins. Co.

of

New York,

133

S.E.2d 770 (W. Va. 1963). Nevertheless, the party opposing

summary judgment must satisfy the burden of proof by offering more than a mere 'scintilla of

evidence,' and must produce evidence sufficient for a reasonable jury to find in a nonmoving

party's favor. Painter v. Peavy, 451 S.E.2d 755 758-59 CW Va. 1994).

A

The

Plaintiffs' alleged nuisance injuries are

not permanent

in

nature but

rather

temporary and

accordingly, they may not recover damages for

diminution in the value of their real estate as a matter of law.

The Plaintiffs are unable to recover diminution in property value, as a matter of law,

because their alleged nuisance is temporary in nature, as opposed to permanent. When a

nuisance is temporary in nature, a plaintiff may only recover for the cost

of

repairing his

property, expenses directly related to the injury, and loss of use or rent. West

v

National Mines

Qm:h, 336 S.E.2d 190, 196 (W. Va. 1985). Additionally, a property owner may recover

annoyance and inconvenience caused by the temporary nuisance. Id. However, where a

nuisance is temporary, the plaintiff may not recover for loss of diminution in property value and

evidence of the difference between the market value of the property immediately before and

immediately after it was injured is inadmissible. Ortesta

v

Romano Bros., 73 S.E.2d 622,

631

CW Va. 1952).

The Plaintiffs' assert a temporary nuisance claim because the nuisance they allege has

ceased. In State ex reI Smith v Kermit Lumber Pressure Treating Co., in an attempt to

determine the proper statute of limitation period, the Supreme Court

of

Appeals

of

West Virginia

discussed the differences between a temporary and permanent nuisance claim. 488 S.E.2d 901

CW Va. 1997). The COUli observed:

t is

said that a nuisance

is

temporary or continuing where it is remediable,

removable, or abatable, or

if

abatement is reasonably and practicably possible, or,

according to some cases, where it is abatable at a reasonable cost, or by the

expenditure of labor or money, by the defendant, or by legal process at the

{C0074483, I}

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4/96

instance

of

the injured party, against the will

of

the person creating it. On the

other hand, a nuisance is permanent if abatement is impracticable or impossible.

Injuries to land are incapable of repair and thus permanent in nature when things

attached to the land, such as timber, trees, soil, and buildings, are removed or

destroyed.

Kermit Lumber, 488 S.E.2d at 924 n.26. Elsewhere in the same decision, the Court noted that

the distinction between a temporary and permanent nuisance depends on whether the nuisance

may be discontinued or abated.

Id

at 924 (quoting Arcade Water District

v

United States, 940

F.2d 1265 (9th Cir. 1991).).

Accordingly, whether a nuisance can be terminated is

determinative of

whether it is permanent or temporary in nature.

The Plaintiffs have asserted that Kanawha Stone's activities concerning the construction

of

the Putnam County Wal-Mart were a nuisance. Specifically, the Plaintiffs alleged that the

Kanawha Stone's activities caused excessive noise, smoke, dust, and light. See Complaint.

Because Kanawha Stone's activities on the project are complete, it is no longer working in the

area and it is no longer doing or causing any

of

the activities the Plaintiffs claim were a nuisance.

Accordingly, the Plaintiffs' alleged nuisance was temporary because not only was it remediable,

removable, or abatable, but it has actually ceased. Thus, the Plaintiffs have asserted a

temporary nuisance claim, which precludes them from recovering damages for diminution in

their property. Consequently, this Court should grant Kanawha Stone summary judgment.

B. All evidence indicates that the Plaintiffs property increased n value, which

precludes any recovery for diminution n the value o their real estate.

The Plaintiffs cannot recover for diminution

of

property value because their property has

actually increased in value. Ms. Halburn and her mother purchased the subject property in 1992

for $40,000. ee Deposition of Dolores Halburn at 31, a copy o which s attached hereto as

Exhibit

B

Pursuant to several refinancings and presumably corresponding appraisals, the

Plaintiffs currently have a mortgage on the property for $115,000. Id at 32. They have also

{C0074483 1}

4 f7


5/96

received a purchase offer for 160,000, they did not accept.

rd.

at 46. Additional evidence

concerning the increase in their property value comes from local realtor, David Bledsoe. ee

Depo.

of M.

Halburn at 107; Plaintiffs' discovery answers, the relevant portion o which

s

attached hereto as Exhibit C . He told the Plaintiffs that their house is worth several hundred

thousand dollars more as commercial property. Mr. Halburn testified:

Q: What

do

you think the value

of

the house is?

A: We have been told that it's worth anywhere between, you know, 300 and

400,000 as commercial property; however, we ve never had an actual

offer for commercial property.

Q: And who, who's told you this?

A: Mike Hall, Dave Bledsoe.

ee Depo. ofM. Halburn at 118. Clearly, the Plaintiffs' property value has increased over time,

and it increased dramatically after the Wal-Mart was built.

The Plaintiffs have no evidence that their property decreased in value. They have

received offers on their property for far more than they paid for it and for more than they owe on

it. Further, Plaintiffs admit that the property is worth between 300,000 and 400,000 as

commercial property. They have produced absolutely no evidence indicating that their property

value has decreased. Therefore, because the evidence indicates that the Plaintiffs' property value

has increased and they have failed to produce evidence otherwise, this Court should grant

Kanawha Stone summary judgment on the Plaintiffs' diminution in property value claim.

c

{C0074483.1}

Kanawha Stone reserves the right t file a Motion for Summary Judgment

on the Plaintiffs nuisance claims because discovery on these claims is

ongoing.

50f7


6/96

A private nuisance cause

of

action is judged by the reasonable man standard. ee Carter

v. Monsanto Co., 575 S.E.2d, 342 W. Va. 2002). While Kanawha Stone believes that the

existing evidence

in

this case - such

as

the Plaintiffs blog, news reports

of

the Plaintiff Mark

Halburn's arrests, and the Plaintiffs' depositions - sufficiently indicates that the Halburns are not

reasonable people and that their complaints cannot be taken

as

those made by reasonable people,

the independent psychological examination the Plaintiffs will undergo in September should

conclusively prove their unreasonableness.

After the independent psychological examination results are received, this Defendant

reserves the right to supplement its Motion for Summary Judgment in regard to the Plaintiffs'

nuisance claims and the alleged damages arising therefrom.

Mary H. Sanders, Esquire (WVSB 3084)

Patrick T. White, Esquire (WVSB 9992)

HUDDLESTON BOLEN LLP

707 Virginia Street East, Suite 1300

P.O. Box 3786

Charleston, WV 25337

(304) 344-9869

{C0074483.1}

KANAWHA STONE COMPANY INC.

By counsel

6 f7


7/96

EXHIBIT A

{C0043539 1}

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8/96

VIDEOTAPED DEPOSITION OF

MARK

VANCE HALBURN

IN

THE CIRCUIT COURT OF PUTNAM COUNTY WEST VIRGINIA

DOLORES

HALBURN and

MARK HARLBURN

p l a i n t i f f s

vs .

CITY OF HURRICANE WEST VIRGINIA

a municipal

corpora t ion BEN NEWHOUSE

ind iv idua l ly and in

h i s

capac i ty as

INDEX No.:

07-C-298

Ci ty

Manager

for the Ci ty of

Hurr icane

Cleveland

Cons t ruc t ion I n c . dba

Cleveland

Cons t ruc t ion Inc . Of Nevada and Kanawha

Stone Company Inc .

Defendants .

Videotaped Depos i t ion of MARK

VANCE HAL

BURN

held

on

Ju ly

23

2008

a t the Law

Off ices

of Huddleston

Bolen LLP

707 Virg in ia St ree t

Eas t

Sui t e 1300

Char les ton West Virg in ia commencing a t 1:15 p.m.

before Kathryn S. L i t t l e Court Repor te r and Notary

Publ ic

in

and

the

S t a t e

of

West

Virginia .

JULY 23 2008

Page 1

f011 b12a 1 cae 4351 a011 04e1 c42b5e


9/96


MARK VANCE HALBURN

JULY 23 2008

Page 2

1 1

2

APPEARANCES:

2

3

3

On behalfof the Plaintiffs:

4

LAW OFFICES OF MICHAEL T.

CLIFFORD

4

By: Michael T. Clifford, Esquire

5

5

By: Alexandria Solomon, Esquire

6

Suite 300

7

6

The

Union Building

8

723 Kanawha Boulevard, East

7

Charleston, WV 25301

9

304-720-7660

10

8

11

9

On behalf of Kanawha Stone Company, Inc.:

12

10

HUDDLESTON BOLEN, LLP

13

11

By: Mary H. Sanders, Esquire

12

By: Patrick White, Esquire

14

13

707 Virginia Street, East Suite 1300

15

14

P.O. Box 3786

16

15

Charleston,

WV

25337-3786

17

16

304-344-9869

18

17

18

19

19

-

20

20

21

21

22

22

23

23

24

24

25

25

Page

3

1

1

2

APPEARANCES (CONTD.):

2

3

On behalf of City of Hunicane,

3

4

West

Virginia,

and Ben Newhouse:

4

PULLIN FOWLER

&

FLANAGAN

PLLC

5

5

By:

James

A

Muldoon, Esquire

901 Quanier Street

6

6

Charleston,

WV

25301

7

304-344-0 I

00

8

8

On behalf of Cleveland Construction, Inc.:

9

STEPTOE & JOHNSON,

PLLC

10

9

By:

Paul

A.

Konstanty, Esquire

Chase Tower, Eighth Floor

11

10

P.O. Box

1588

12

Charleston, WV 25326-1588

13

11

304-353-8170

12

14

ALSO

PRESENT:

15

13

Dolores Jean Halbum

16

Bette Damron, The Travelers Companies

14

Todd Bergstrom, summer clerk

17

15

Donald K. Garrett, Jr., videographer

18

16

19

17

18

20

19

21

20

22

21

22

23

23

24

24

25

25

VIDEOTAPED DEPOSITION OF MARK VANCE HALBURN

JULY 23, 2008

VIDEOGRAPHER:

The

videotape recording

has commenced and we are now on the record.

Today is July 23rd, 2008, and the time is

approximately 1: 15 p.

m.

My name is Garrett Reporting Service,

and I m a legal, a certified legal video

specialist with Accurate Reporting, Court

Reporting, Incorporated, whose address is 26

-- 24630 Sawmill [sic] Boulevard, Suite 401,

in

Punta Gorda, Florida, ZIP code 33983.

This is the deposition of Mark

Halbum in the matter of Halbum, Dolores and

Mark, versus Kanawha Stone Company,

Incorporated.

Case

No. 07-C-298. Pending

in

Circuit Court

of

Putnam County, West

Virginia.

This deposition, deposition is being

taken at Huddleston Bolen, 707 Virginia

Street East, Suit e 1300, Charleston, West

Virginia. The court reporter is Kathy

Little.

Will counsel please identify yourself

Page

5

for the record stating your name, address and

whom you represent.

MR. CLIFFORD: Mike Clifford, 723

Kanawha Boulevard, East, Suite 300,

Charleston, 25301, for the plaintiffs.

MS. SOLOMON: Alexandria Solomon.

Same address as Mr. Clifford, representing

the plaintiff.

MS. SANDERS: Mary Sanders

representing Kanawha Stone.

MR. MULDOON: Jim Muldoon on behalf

of

the City of Hurricane and Ben Newhouse.

MR. KONST ANTY: Paul Konstanty,

Steptoe & Johnson, on behalf

of

Cleveland

Construction.

VIDEOGRAPHER: The Notary public and

court reporter will stenographically record

the testimony today. And at this time will

the court reporter please swear the witness.

THEREUPON,

MARK VANCE HALBURN,

Being first duly sworn testifies as follows:

VIDEOGRAPHER: Thank you.

Counsel, you may proceed.

2 Pages 2 t 5)

f 11

b12a-1cae-4351-a011-04e1c42b


10/96

VIDEOTAPED DEPOSITION

OF MARK VANCE HALBURN

JULY 23,

2008

Page

6

Page

8

1 1

2 EXAMINATION

3 BY-MS.SANDERS:

4 Q Mr Halburn,

Mary

Sanders. I

5 represent Kanawha Stone Company.

6 You ve given a deposition before,

7 haven t you?

8 A Yes.

9 Q. How many times?

lOA I believe once or twice.

11 Q. Okay.

What

was the first time?

12

A

t was regarding an accident probably

13 about

15

years ago in Southern California,

an

14

automobile accident.

15

Q. Were you a party to that?

16

A Yes. I was the plaintiff.

17 Q. And what county?

18

A. I was the injured victim.

19 Los Angeles.

20

Q. Los Angeles County?

21 A

Um-hrnm.

22 Q And what

year

was that?

23 A

I m going to guess about 92

or

93.

24

It s been many years ago.

25 Q Did that case go to trial?

Page

7

1

2 A No,

it

did not.

3 Q. Was

it settled?

4

A.

Yes, it was.

5

Q.

Who was your attorney?

6

A.

Rolf Troy.

7 Q And do you know who the attorney was

8 opposing you?

9 A I do not.

10 Q.

Do

you

know the name of the

11 defendant?

12

A I don t recall. I believe the

1

3 attorney represented Reliant Insurance, but

14

it s been many years ago.

15

Q. Okay. When was the second time you

16

gave a deposition?

1 7 A We had a house fire probably about

1 8 three or four years ago where someone set a

19

wood rack on the front porch of our home on

2 0 fire, damaged the home, and I gave a

21 deposition

with

Nationwide Insurance. I m

22 not even sure if it was a deposition with a

23 formal attorney or just a formal statement

2 4 that was recorded. I don t recall counsel

25 being there now that I think about it, just

2 a claims agent.

3 Q.

SO

was there a lawsuit filed?

4

A

I don t think so. I don t think --

5 THE DEPONENT: Do you recall?

6 Q. Just a claim?

7 A No, there was no lawsuit filed.

8 Q. A claim with your -- your

9 homeowner s was Nationwide?

lOA Correct.

11 Q. And how

much

damage was done to your

12 home?

13

A. I

would

say less than 10,000. I

14 don t recall the di rect amounts. The siding

15 was damaged, and

because

they couldn t match

16 it they had to -- they ended up re-siding,

1 7 redoing the siding on the entire home. I

18

think the

claim came

to less than 10,000.

19 Q. And do you know who started the

20 fire?

2

1

A. We suspect, but we ve

never been

22

able to prove it.

23 Q. Okay. Was there a police report

24 filed?

25 A. Yes.

Page 9

1

2

Q. With

the Putnam County Sheriff s

3 Department?

4 A No, ma am.

5

Q.

Who with?

6 A. Hurricane Police Department.

7 Q. Okay. All right. Well, just to,

8 just to remind you, and Mike s probably told

9 you also, but a deposition, the court

10 reporter takes down everything that s said,

11 all the questions, all your responses, so

12 it s important for you to respond verbally

13 rather than a nod of the head.

14 A. Right.

15

Q. If you don t understand anything I m

16

asking, p lease tell

me

so I

can

rephrase my

17

question, because if you answer it, I m going

18 to assume you understood the question. Okay?

19

A Okay.

20

Q. If you want to take a break at any

21 time, just speak up and we can do that.

22 A. Okay.

23 Q. Give me your age, please.

24 A 46.

25 Q And have you only been married once?

3 Pages 6 t

9)

f011 b12a1

cae4351a01104e1 c42b5


11/96


OF

MARK VANCE

HALBURN

JULY

23,

2008

page

10

Page

2

1 1

2

A.

No. 2 Q. And what is that business?

3 Q. Twice? 3

A.

They are a -- they do in-bound,

4 A.

Yes.

4

well, our division of it does in-bound calls i

5

Q And when was your first marriage?

5

for

XM

Radio and Gevalia Coffee. I work for

6 A.

1995.

6

the XM portion

of

the building.

7 Q.

Was that in the state

of

California?

7 Q. SO

Sitel is a contractor to

XM

8 A.

No, it was not.

8

Radio?

9 Q.

Where was it?

9 A.

I believe that's how it would be

r

lOA t

was in Las Vegas, Nevada.

1 0

legally described.

11

Q.

Okay. What was your first wife's 11

Q

And you work with advertising?

i

12

name?

12 A.

No, I work with in-bound customer

1

13

A.

Her name is Joanne Morgan. 13 service setting up new accounts, activating

14

Q.

And when were you divorced?

14

radios, minor troubleshooting.

15 A.

On November

of1997. 15 Q.IsyourofficeinHuntington? i

16 Q.

Did you have any children in that

16 A.

The call center is in Huntington,

1 7

marriage?

1 7

yes.

18

A.

She had children, I did not adopt

18

Q. Is that where you work or --

19

them. I took care of them many times, but 19 A. That's where I work. I don't have

I

20

they were not my biological children. 20 a physical office. I work in a room with

21

Q. Okay. You were born in California? 21 lots of cubicles.

22

A.

So I'm told.

22 Q.

Okay. And how many hours a week do

23 Q.

Okay. Which county? 23 you do that?

24 A.

Los Angeles.

24 A.

40

to 45

normally.

25 .

And

ou

went

to

school in -- all

25 Q.

Who is our su 'ervisor over there?

1

~

~ ~ ~ ~ I ~ ~ ~ = = ~ ~ = -

______

~ ~ ~ ~ ~ ~ I ~ ~ P ~ = = ~ ~ ~ ____

Page 11

Page 13

1

2 your schooling was in California?

3

A. No.

4

Q.

Okay. Tell me where else besides

5

California.

6 A.

Well, I have taken a Cisco class at

7 WVU

Tech at the Charleston Five Point Center.

8

I started taking another class at Marshall.

9

I took a computer assembly repair class at

10 the Putnam Vo-Tech center, and recently took

11

a medical office assIstant training out at

12

Goodwill in connection with Marshall

13

University.

14

Q.

Okay. Are you employed right now?

15 A.

I

am.

16

Q.

What is your employment?

1 7 A.

I

--

I'm

off

for the summer as a

1

8 substitute teacher with Kanawha County

19 Schools, and I work for Sitel in Huntington.

20 Q.

What is it?

21 A.

Sitel.

22

Q.

How

do

you spell that?

2 3

A.

Sitel is spelled S-i-t-e-l.

24 Q.

In Huntington?

25

A.

Yes.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

A.

I have a number of them. Stan

Coniffis my direct. We don't work the same

hours, so I report to other people when he's

not there.

Q.

And you're a substitute teacher for

Kanawha County or Putnam County?

A.

Correct.

Q.

Kanawha County?

A.

Kanawha County, yes.

Q.

How long have you been doing that?

A.

I signed up in 2005. I believe it

was

Mayor

June.

Q. Is

that the only county where you

do

any teaching?

A.

I recently applied at Lincoln County

and am still in the application process.

Q.

SO you have a teaching --

is

it a

certificate or license?

A.

It's a substitute teaching permit

that renews. It just expired the end of

June. The application is in process, for

renewal is in process and should be renewed

shortly. It's about a three-year

certificate.

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4 (Pages 10 t 13)

f011 b12a-1 cae-4351-a011-04e1 c42b


12/96


OF MARK VANCE

HAL

BURN

,

JULY 23, 2008

Page 14

Page

16 *

1

1

f

a

2

Q.

How long haye you worked at Sitel?

2

A.

I didn't publish that.

3

A. Since April 21st of this year.

3

Q.

I thought that was in the Putnam,

4

Q.

Where did you work before Sitel?

4

your web page?

5

A. I've worked with Kanawha County

5

A.

I asked the question. I didn't

6

Schools for several years, and then prior to

6

publish it, they did.

7

that I worked for WPD Channel

15

in Conway,

7

Q.

Who published it?

8

South Carolina.

8

A.

I published the question, I did not

9

Q.

What year was that?

9

publish the statement.

10

A. 1997. Or I mean 2007. My

10

Q.

Okay. Why did you say that he,

R

11

apologies.

11

that that's what it stood for?

12

Q.

SO did you work for a company in

12

A.

I didn't say that that's what it

13

South Carolina in 2007?

13

stood for.

4

A.

Yes, ma'am.

14

MR. CLIFFORD: I'm going to object

15

Q.

From -- so you moved away from West

15

to the question. It's not relevant and has

16

Virginia?

16

no basis in moving to relevant questions.

17

A.

I lived in a hotel.

17

Answer it

if

you can.

i

8

Q.

Okay. How long did you do that?

18

Q.

Do you know why Judge Spaulding

19

A. About, about three months.

19

recused himself in this case?

I

0

Q.

Were you fired or what happened?

20

A.

Yes.

21

A.

I was fired over creative

21

Q.

Why?

I

2

differences. The

job

did not end up being

22

A.

Because he objected to an editorial

23

what they said it would be when I went down

23

that I did that criticized him sentencing

24

there, and things d i ~ n ' t work out.

24

someone who threatened a deputy's life to

25

Q. Was that a full-time job?

25

home confinement, and I felt that that was

Page

15

Page

1 7

1

1

2

A.

t was, very. 2

much too light of a sentence for somebody

3

Q.

And what town was that in?

3

who threatened the life

of

a law enforcement

4

A. The studios were in Conway.

4

officer. That person, by the way, bombed

5

Q.

Conway, South Carolina?

5

his home confinement and ended up going to

6

A. Right. The Myrtle BeachIFlorence

6

pnson.

7

market.

7

Q.

Okay. And you objected to that in

8

Q.

I see from your answers to discovery 8

your on-line newsletter or where?

9

that you've had a lot

of

different jobs.

9

A.

In an editorial clearly labeled as

0

How many jobs have you been fired from?

10

commentary.

11

A.

I don't recall.

11

Q.

Okay.

12

Q.

All right. Well, let me go through

12

A.

I don't feel that our officers

13

some

of

them then.

13

should have their lives threatened.

14

Before I get

to

that, you, you know

14

Q.

And Judge Eagloski also recused

5

this case

is

pending in the Circuit Court

of 15

himself. Do you know why?

16

Putnam County?

16

A.

Yes. Because Judge Eagloski lied to

17

A. Yes.

17

the Supreme Court after I filed a writ of

18

Q.

Your case. 18

mandamus because he did not sit in hearing

19

And you realize both judges have

19

for a noise ordinance writ of mandamus. I

20

recused themselves, both

of

the Putnam County

20

had been in contact with all of my

21

judges?

21

legislatures regarding a state noise

22

A.

Yes.

22

ordinance. One of them happens to be his

23

Q.

Why -- why did you publish your

23

sister. He then told the Supreme Court that

24

opinion that Judge Spaulding's first initials

24

I was trying to intimidate him by talking to

25

stand for, stood for on crack?

25

his sister when I had been speaking with her

' ' ; ' ' ~ ' ' ' ' ' ' ' : ' . ' ' ~ ' ' ' 4 ' ' ' ' ' ' ' ' ' ' ' ' . i t > : . ~ ~ ~ ' i i ; n < ~ i K ,

; : ~

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~ , , , , , ~ " , , , , , , , j , , , , , , w : . ~ ' , , c . l " ' ; . l ' ' ' : ' < ' ' ( '

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: . : ' .....

- ~ ' . W ' _ _ 4 . . , ; . J . ) . . . . . , , ; ~ , ; > l . ' ' ' '

.

W . , ) . ~ I ;

.

'''..;

i . S ; ~ , f . : ' > fu ' ; ( ,

...... ~ - w v ~ ~ ~ $ l : I t " ' O '

~ ) . ~ . ' ~ ~ > , b ' 6 . ~ . ~ 4 ~ ~ ; ' ; ; ' t l - , ~ ~ , ' I > ~ .... ~ ~ ; . . m . ~ , ~ , :

5 (Pages 14 to

17)

f011 b12a-1 cae-43 51-a01 1-04e1

c42b5


13/96

VIDEOTAPED DEPOSITION OF MARK VANCE HALBURN

JULY 23, 2008

Page 18

1

1

2

and every other legislator for months prior

2

3

to that. It was a smokescreen on the part

3

4

of Judge Eagloski.

4

5

Q

Okay. I'm trying to find your list

5

6

of

employment.

Do

you recall when, when --

6

7

well, let

me

ask you this: When did you

7

8

graduate from college, get your undergraduate

8

9

degree, your BA?

9

10

A. My

BA

was 1988.

10

11

Q

1988. Did you have any employment

11

12

before graduating from college?

12

13

A.

Yes.

,

13

14

Q

What was that employment?

14

15

A.

I worked in a couple

of

stereo

15

16

stores, a camera store, a couple

of

radio

16

17

stations.

17

18

Q

Okay. Your major in college was

18

19

what?

19

20

A.

Communications.

20

21

Q

You gave -- you gave us a list

of

21

22

all these employment you had. It looks like

22

23

this one is not dated, I don't think, when

23

24

you were a shuttle driver in San Diego?

24

25

A.

Correct.

25

Page

19

1

1

2

Q

Is that your first job?

2

3

A.

No.

3

4

Q

Okay. Do you know what years you

4

5

did that?

5

6

A.

I started in 1997 to provide income,

6

7

because I was goiriii into the insurance

7

8

business on commission only, and I worked

8

9

there until I moved to West Virginia in the

9

10

year 2000 and I quit that job.

10

11

Q

Okay.

How

long did you work there?

11

12

A. From 1997 to 2000. April

of

2000.

12

13

I don't recall what month I started in '97.

13

14

Q

Okay. And then you were a manager

14

15

at a Save-A-Lot supermarket

in

Spring Valley,

15

16

California.

How

long was that?

16

17

A.

About a year.

17

18

Q

And you, you quit that

job

as well?

18

19

A.

I quit that to start the insurance,

19

20

actually, yes. 20

21

Q

And your insurance work was as

an

21

22

agent? 22

23

A.

As

an

agent that owned a stake in

23

24

the book of business that I generated.

24

25

Q

Okay. Did you have a license for

25

; J . } ~ : ' ~ ' ' ' i - ; < ~ " o I # . O . ' ' ' ' ' ' , H i : n M _ f i ? ~ ~ ~ > I \ ' / . ; ' ' ' ~ . W - ' ' ' ' ' ' - ' ' = ' ' - ~ W W ) l . ; : ~ ~ , , , ~ ~ ~ , ~ : i J ~ t ; . } ; . ' > . ; ; t = ' ; i ) . > ' . > ' f ~ ; ( . I " " " , ~ : . , . " , , ; , N ' ; ' I ~ i ; " : ' ' j : ' ' ' ' . : > i ; \ ; ; . , ; , , ' $ ~ . , > , , . : . , - , ) . ) . ~ \ , . , { , . C ~ " ~ " ' ' : ' ' ~ ~ ~ ; ; > A > ; , ' ; ; ~ _ ' ' " , , , W ? > , M ' , , , , , , , , , ~ , W I . > . - : . ; - ....... < . W ~ y . f . : " " , " " . ~ ' ' ' ' ' ' ' . ) . ' ' ' . v > ' t - ; \

.o:r.:

t ., / ' ~ . ~ '

6

Pages 18 t 21)

f 11 b12a-1 cae-4351-a011-04e1 c42b5


14/96


MARK VANCE HALBURN

JULY 23,

2008

Page 22

1

2

some of

the safety situations, including

3

literally live rattlesnakes in the parking

4

lot and tall brush out in the area. And I

5

suggested that if they didn t cut down the

6

brush and do something about the rattlesnakes

7

that somebody

could

get hurt

and

the station

8

could

bum

down.

They

told

me

I was a

9 troublemaker, they fired me,

and

in 2003

10

their station burned down in a brush fire,

11

part of it.

12

Q

Okay. Had you --

13

A. I can provide photos of that, if

14

you d like them.

15

Q

No, I don t, I don t need any

16 photos.

17

A. It was almost a textbook

of

what I

18

told them would happen.

19

Q

Okay. So the whole time you were

20

working there youhad a contentious

21

relationship with the management?

22

A.

No.

23

Q

Just

when you

started making

24

complaints?

25

A. Just when I addressed some safety

Page 23

1

2

concerns.

3

Q

Okay.

4

A. I was, in fact, promoted during the

5

time I was there. So ...

6

Q Okay. And you were there for

7

approximately a year?

8

A. About two years.

9

Q

Two years. Then you went to looks

10

like substitute teaching? No. You had a

11

substitute teaching position during all that

12

time period, too --

3

A.

1

14

Q

-- that were we

just

talking about?

15

A.

I substitute t,mght from 1989 to

16

1997 when I started

doing

the insurance and

17

took, took time

away

from teaching to try to

18

develop a business.

19

Q

Okay. And you were, you were not

20

fired from

any

teaching position as a

21

substitute teacher?

22

A.

No.

23

Q

Were

you ever reprimanded?

24

A.

No.

25

Q

Then

you worked as a limousine

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Page 24

driver for

Cloud Nine

Shuttle

in San

Diego.

Did

you quit

or were

you fired from that

job?

A. As

I

stated earlier,

I

quit to move

to

West

Virginia.

Q. Okay. You moved to West Virginia in

2000?

A.

Correct.

Q. What

year

were

you married to your

current wife?

A. 1998.

Q. 98. Okay. And you were married

in

the state

of

California?

A. No.

Q.

Where were you married?

A. Scott Depot, West Virginia.

Q. Okay. Then, then during the first

couple years of your marriage you lived in

California?

A. About the first year and a half.

Q. You worked as a freelance reporter

for East

County

Newspapers?

A. Correct.

Q.

And you weren t fired from that

position?

A. No.

The company was sold.

Q

Okay.

Then

you

were a freelance

Page

25

writer for the Lawton Companies, KGTV?

A.

Right.

The

Lawton Company is a

temporary agency that they hired all their

freelance people through. I worked for KGTV.

KGTV at Channel 10. I was paid

by

the temp

agency.

Q

And what kind

of

writing were you

doing?

A

Television news.

Q

Then

you worked in sales for

Schwan s, Schwan S, Schwan s Finer Foods?

A.

Schwan s.

Q

Schwan s?

A. The ice cream people.

Q

Were

you a -- you were not a

driver, were you?

A.

I was a driver.

Q

You were driving?

A.

Route builder. I did a lot

of

different things.

Q

All right. And you worked there for

7

Pages

22

t

25)

f011 b12a-1 cae-4351-a011-0 4e1 c42b5


15/96

VIDEOTAPED DEPOSITION OF M RK V NCE H L BURN ,

JULY

23,

2008

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1

2

3

4

5

6

7

8

9

12

Page 26

little less than a year?

A

Correct.

Q

Why did you leave there?

A Because I was hired to work in

Winfield and the manager refused to fire

somebody that the district manager wanted me

to replace him with, so they had me working

out of their Beckley, their Tennessee, their

Clarksburg, their various locations. They

would literally work on the road all week

long. And I got tired

of

being away from

my

wife, and we had some nephews that

we

were taking care of, and I left there

because I got tired of being gone all week

long.

Q Okay. Then the Ramsey Agency, which

you ve mentioned, and you left there because

you weren t making enough money?

A

Correct.

Q

Then you worked for DLI Insurance

Agency in -- no, that was before. That was

before you worked for Ramsey?

A That was before I moved to

California.

Page

27

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Page

Route 60 in Barboursville. And when the car

was coming up behind me, I pulled

off

to the

right and crossed the white line, and because

I crossed the white line and because I had a

license plate frame that partially obscured

the registration ticket, he wrote me the

ticket for both

of

those. Had I not pulled

over, I would have been rear-ended. But

it s apparently illegal to cross the white

line.

Q

And there was no accidents involved?

A

There was no accidents. Had I not

taken the evasive action there would have

been.

Q

Okay. So you were ticketed. There

must have been an officer right there?

A

There was a trooper several cars

back.

Q

Okay. And this was a state trooper?

A

Yes.

Q

Do you recall his name?

A

I believe it was Blankenship.

Q

And did you complain

to

Blankenship

about the ticket or iust his superior?

Page

8 Pages

26 t 29)

f 11

b12a-1cae-4351-a011-04e1

c42b5


16/96

VIDEOTAPED DEPOSITION OF MARK

VANCE

HALBURN ,

JULY

23, 2008

Page 30

1

2

MR. CLIFFORD: Just for the court

3

reporter s sake.

4

BY-MS.SANDERS:

5

Q

What was the story that you said was

6 fabricated to your employer?

7

A

I worked in sales and, for the

8

newspaper, and

I

did not identify myself

as

9

a reporter. He said that

I

threatened to

10

put

a story on the front page of the

11

newspaper, which, A

I

didn t do, and, B, I

12

didn t have the right to do or the ability

13

to do or the authority to do.

14

Q

And that s what the sergeant told

15

someone at Lincoln Journal?

16

A

Correct.

17

Q.

Who was the person at Lincoln

18

Journal who took that call?

19

A Patty, I think her name was Patty,

20

pardon me, Robinson.

21

Q

Robinson?

22

A

She s the wife of the fOImer owner

23

and current publisher.

24

Q

And--

25

A

He s since sold the stake in the

Page

31

1

2

paper.

3

Q And the Robinsons or the Lincoln

4 Journal fired you b ecause

of

that phone call?

5

A Correct.

6

Q

Because you had threatened to put

7

something in a newspaper about this, getting

8

this ticket?

9

A

Because the sergeant said that

I

10

threatened.

11

Q

Threatened how?

12

A

To put something in the paper.

I

13

never made the threat.

14

Q

And that was why they let you go?

15

A

That s why they let me go.

16

Q

Did you contest this with the, the

17

firing, with unemployment?

18

A I

don t recall contesting with

19

unemployment. I contested with Division of

20

Labor because they did not pay me all of the

21

commissions that were due me and still

22

haven t.

23

Q.

Is that an ongoing issue that you

24

have with the Division of Labor or with the

25

Journal?

.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1

2

3

4

5

6

7

8

9

10

11

12

3

14

15

16

17

18

19

20

21

22

23

24

25

Page

32

A

It s been settled. I don t think it

was settled properly, but there s no formal

litigation or anything like that going, if

that s what you mean.

Q.

Did you have an attorney representing

you?

A

No.

Q.

Okay. Then you left

--

then you

worked for about five months as a reporter,

photographer, columnist, for Point Pleasant

Register?

A That was actually before the Journal.

Q. It was? Okay. And was that a

full-time job?

A

Yes.

Q.

And were you fired from that job?

A

I was fired as was my editor. They

made a change in staff.

Q.

I m sorry, did you say you were

fired?

A Yes.

Q.

Okay. And do you know why?

A

They made a change in staff. They

fired -- I was one

of

several editorial

Page 33

people that were fired, including my editor.

Q

Was there any

--

did you contest

that firing with any agency?

A

No, not that I recall. I m sorry,

I

contested the denial of unemployment and

won. I did not contest the firing.

Q

Okay. So that was with the Division

of

Unemployment?

A

Correct.

Q

Is that the only time you ve had

denial of unemployment benefits that you

contested

or

were there other times?

A

When

I

was in college, I was laid

off. Contested, because they denied my

unemployment because

I

was a full-time

student. I had worked full-time for several

years while I was a student, and I contested

and appealed that and won.

Q

Okay. Then it looks like you worked

for several months as a medical transport

driver for Fresh Air Transport?

A

Q

A

Correct.

Were you fired from that job?

No. The company closed down its

9

Pages 30 t 33)

f011 b12a-1 cae-4351-a011-04e1 c42b


17/96


OF

MARK

VANCE

HALBURN,

JULY

23, 2008

Page

34

1

2

West

Virginia division after

two drivers

3

rolled a

couple

of

cars and killed people

4

and they lost their insurance. I was not

5

one of those drivers.

6

Q. Okay.

Then

you were

a

web

site

7

consultant for Freedom Auto Sales?

8

A. Correct.

9

Q.

Was

that a contractual relationship?

10

A. It was just a freelance relationship.

11

I built a web site and taught them how to

12

operate it, and the job was done and over

.

13

once they learned

how

to do it themselves.

14

Q. SO it was about three, took three

15

months to develop a web site for them?

16

A.

I don t recall

how many

months.

17

Q.

Is that the

only job

you've

had

18

where

you developed a

web

site for a

19

company?

20

A. No. I worked for Jerry Summers who

21

ran for delegate in Kanawha County several

22

years ago. I helped

him

build a web site

23

during his campaign.

And

then with

WPDE

I

24

helped them redo their web site

down in

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

Page 3 6

@

i

I

Q. Okay. So they had no news announcer

or

morning

show producer after that?

A. They, they went to a live morning I

show when they changed the format and dumped I

the

Bob and Sherry

show,

and they didn t

need a morning show producer.

The

newscasts

x

were being

done by

Kenny Bass and they were

sent in

by

computer,

and

the live morning

i

announcer

that

they

had to

do

that show then

took over those duties. He

just

recently 1

le

c t.

11

Q. Was that a two year, two year job?

Correct. i

2003 to 2005?

A. It

was

late 2003,

early 2005,

so it i

was

under two years, but I

don t

know

the

exact months.

Q. That s a 40 hour per

weekjob

during

that time period?

A.

It ended up being close

to

40

hours

a week.

It was

not a, not a full-time

staff position.

It

was considered a I

part-time

position

where I worked pretty much

full-time hours.

l 1 ~ ~ ~ ~ ~ r l ~ ~ ~ ~ ~ ~ ~ p a g e 3 7 ~ I

2 Q. Okay. Then you were a guest talk 2 Q. But you had no benefits?

25

South Carolina last year.

25

Page

35

3 show host for Tri-State Viewpoint? 3 A. (Shakes head.)

4 A. Correct. 4 Q.

No?

Q.

Was

that

on

a particular program? 5 A. No.

6

7

8

9

A. It

was -- Jean Dean has a regular 6 Q. Okay.

program, and

when she

went

on

vacation she

7

A. I'm sorry.

invited a number

of

people to work a day 8 Q.

Then

you worked for Cingular?

here and a

day

there, and I was one of the 9 A. Correct.

10

people that she

had fi l l

in for her.

10

Q. Customer service, technical support.

11

Q. Okay. Something

in

Hamlin, I can't

11

And you worked out

of

Grayson, Kentucky?

12 tell what it was.

12

A. Correct.

13

A.

Lincoln

Journal. 13 Q. SO you only

worked

there for about

n : ~ 0 7 : ~ ~ : U ~ ; ~ ~ o i : ~ ~ : : ~ ~ again? ~ ~ f ~ . r ~ o ~ t ~ ~ o r k e d there

from

May

of2005

16

Q

Did you work

there twice?

16

to

January

of

2007.

1 7 A. No. 1 7 Q. Okay. So that's the job

you

took

18 Q. All right. Then you worked for

LM

18 after the news announcer

morning

show?

19

Communications as a public affairs

director

19 A. Correct.

20 and

news

announcer and morning show producer?

20

Q. And that was also a full-time job?

21

A. Correct. 21 A. That was a full-time job with

22 Q. And

were

you fired from that job? 22 benefits.

23 A. I

was laid

off.

23

Q. And why did

you

leave that?

24 Q. Why

were

you laid off, do you know? 24 A. I got tired of driving to Grayson.

25 A. They

eliminated

the position. 25 Q. Okay. So that job was, you would

: 'W ; : u . : . - , , ~ ~ l C ~

, ~ ~ 0 ' < 7 . ~ " M . i \ W ' ~ J I " " ~ " . . . , . . . , . . . " , v \ : . l , ~ ~ , ~ l > . ' " " " " U ;

; t - ~ ~ ' I ) f " " , ~ ; ; ~

' : i ~ O : ; : . , ; ; ' ~ " ; ; ' ; J < , ~ ~ . , . . U ~ ' ' < ; ; , < W . . , , ;

';'.


18/96


OF

MARK

VANCE

HALBURN ,

JULY 23,

2008

Page 38

Page

1 1

2 leave early in the morning and get back late 2

A.

Correct.

3 at night? What were your hours? 3 Q.

And

were you fired

or why

did you

4 A.

Roughly

2 to

11

1 to 11 for the 4 leave that?

5 most part, occasionally 9 to 5. It was 5 A. No, I quit.

6 pretty

much

a

swing

shift job. 6 Q. A lot

of

these

jobs

the time periods

7 Q. 2 in the afternoon until 11 at 7 overlap.

8 night? 8 A. Right. 1

9 A. Correct. 9 Q. SO --

10 Q. And you worked for PRC? I m not lOA I m a busy person.

q

11

sure what that is. Something with Direct 2 Q.

SO

you ve never had two full-time : ; ;

12

TV? jobs at once, have you?

13 A. It s a company that used to do 13 A. Not that I recall.

I

14 customer service for

Direct

TV until very 14 Q SO typically

you

have the variety of

15

recently they sold their Huntington division,

15

freelance and short-term --

J

{I}

16 and I left that job to take the job in

16 A.

Correct. ;

1 7

South Carolina.

I

quit that job.

1 7

Q employment?

.8

Q.

Okay.

And then

you worked

some

for

18

And

Putnam Live

is still

being

19

Charleston Daily Mail?

19

published? I

2 0 A. I freelanced for the Charleston Daily 2 0 A. Correct.

2 1 Mail. 21 Q.

Do

you still work for internet

22

Q. And that position or freelance 22

content manager

for WPEE? i

23 position -- or you jll st covered the city 23 A. No. That was the television station

24

council meetings, that s it? 24 in Conway. j

_2_5

___ A ~ . ~ F ~ o r ~ S ~ 0 ~ u ~ t = h _ - _ - ~ L ( e = s ~ , t h = a ~ t ' ~ s ~ i t ~ .

______________ 2 ~ 5 - - - - Q ~ . C ~ o = n ~ w ~ a ~ ~ ~ o = k a ~ ~ ~ ____________________

1

2

3

4

5

6

7

8

9

10

12

13

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15

16

17

18

19

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21

22

23

24

25

Q Okay.

And

then they eliminated

covering?

A. They eliminated it for about a year

or so, and then recently put another

freelancer in there.

Q. Okay. Then also

you

were a district

manager for, I m

not

sure what this is,

Dealer Specialties?

A. Correct.

Q. What did they do?

A. We did -- we took pictures of used

Page 39

cars, put them on a national web site called

GetAuto.com and created window stickers that

had the features and things on a used car

much like you have

on

a

new

car so that

salespeople and customers can look at the

sticker and find out;if it has power

steering or, you know, the sun roof is

obvious, or fingertip audio or whatever the

feature is. Very similar to what our, what

are on new cars. They fill the gap because

it s a way

of

providing the same information

for used car customers.

Q. Is that in West Virginia?

1

2

3

4

5

6

7

8

9

10

11

12

3

14

15

16

17

18

19

20

21

22

23

24

25

Have you had any other jobs that

we ve left out?

A. No.

Q. That s pretty much the list that you

gave us.

A.

In college

I

worked various jobs.

Q. Okay. So you -- the home you live

in in Hurricane is, is that in the city

limits

or

is it outside?

A.

It s in the city limits.

Q. It is?

Page

That home is owned by your wife and

her mother?

A.

Correct.

Q.

Is your wife s

mother

still living?

A. Yes.

Q. Does she live with you?

A.

Sometimes.

Q. How much of the time does she live

with you?

THE

DEPONENT: What would you say?

A. 30 percent, 50 percent. She also

rents a home in Charleston

and

goes between

the two.

41

i

i

,

I

"

11 (Pages

38

t 41)

f011 b12a1

cae4351a01104e1 c42b5


19/96


OF

MARK

VANCE

HALBURN,

JULY

23, 2008

Page

1

2

Q. And has that been true since you ve

3

been living there that she s not there all

4

the time?

5

A.

No. She -- when we first got

6

married, we moved Dolores

to

California, she

7

lived there the entire time. She lived

8

there before Dolores and I got married.

9

They bought the home -- pardon me -- they

10

bought the home together. When we got

11

married, we moved Dolores -- there was a

12

couple of months before we could find Dolores

13

a job out west, so I was there and she was

14

here. We moved Dolores out there.

My

15

mother-in-law and her sister lived in the

16

home, then I we came back here and we were

17

here I m guessing six months before they then

18

rented a home in Charleston. And since then

19

she goes, she goes back and forth between

20

the two.

21

Q. Okay.

22

A.

The sister lives in Charleston full

23

time.

24

Q.

It s the -- the sister is your

42

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

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17

18

19

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21

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23

24

Page

44

R

Q. Okay. The property, is it in a, is

it zoned in a commercial, commercially zoned

i

or do they have zoning in Hurricane?

A.

They have zoning in Hurricane, and

I ve been told

by

people at city hall, one

I

person has told me that it s zoned

commercial, another person says that it s

zoned residential. I believe that it s, that *

it s zoned commercial. 1

Q. And ever since you ve lived there

there s been a crane sort of garage or ;

r ~ t a l ~ ~ : : , : . e r v i c c right next door?

I

Q. What does that business next door to

you do? 1

A. Make a lot of noise and store

equipment, and I believe they do

some

sort

of construction work. What exactly they do

I

I don t know.

Q. Have you ever made complaints about

that business? I

A. Yes. They re very rather noisy.

The proper ty is extremely sloppy, lots of

tall weeds rusty equipment, dilapidated

I - - - - ~ - - ~ ~ ~ ~ ~ ~ - - - - - - - - - - - - - - - - - ~ - - ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ = - - - - - ~ i

Page

45

25

mother-in-law s sister?

25

1

2

3

4

5

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9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Page 4

1

A

Correct 2 equipment

Q Okay. And what

is

her name? 3 Q Do you know what the name of that

A. Donna Smith. 4 business is?

Q. She lives with your mother-in-law in 5

A.

I believe it s Kanawha Valley

Charleston and at xour house? 6 Construction.

A.

In

Charleston . 7 Q. Do you recall when you made the

Q. Just in Charleston? 8 first complaint about that business?

A. During the time that we were in 9 A. Probably in 2000.

California, they both lived in the house in 10 Q. Right when you moved in?

Hurricane. 11 A. It would have been shortly after.

Q. All right.

So

since you moved in 12 Q. And the complaint was over the noise

the house in the year 2000, sometime in the 13 level from the business?

year 2000? 14 A. Correct.

A. April of 2000. 15 Q Is the business -- what time does it

Q. April

of

2000. And that s been your

16

open and start making noise?

only residence since then except for 1 7 A. Sometimes as early as 5 or 6 in the

temporary resident maybe in South Carolina? 18 morning.

A. Correct. I was never a resident of 19 Q. And is that true today as well?

South Carolina. I was -- the company had a

20

A. Today they probably start at around

room for me at the Holiday Inn in Myrtle

21 7.

Beach

on

the Waccamaw River, and I lived

22

Q. And --

there, but I never established residency or

23

A. They weren t very noisy

today i

surrendered my West Virginia driver s license

24 Q.

What time do they stop making noise?

or anything like that. 25 A. 5 6 7:00 at night. Sometimes

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12

(Pages 42 t 45)

f011 b12a-1 cae-4351-a011-04e1

c42b


20/96


OF

MARK VANCE HALBURN,

JULY 23, 2008

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

l

19

20

21

22

23

there's been people that are later than that.

Q Who have you--

A They're usually done by sunset.

Q.

Who

have you complained to about

Kanawha Valley Construction?

A. The police department.

Q. Hurricane Police Department?

A.

Yes, ma'am.

Q. Any other complaints?

Page 46

A

The city manager, the mayor, former

mayor.

Q.

City manager and the mayor. Anybody

else?

A

Not

that I recall. There was a

1

2

3

4

5

6

7

8

9

10

11

12

13

Page 48 \)

the

name

ofEd Norris.

He

was no longer an f

k

employee, he retired.

Q. Okay.

A

And Ed came out with two or three

J

police officers, I believe, and ironically

the health inspector. I don't know why she

was there. I think she was at city hall,

and they all just ran down there together.

KelTI

Haden

or something. I'm not sure

what

her last name is. She still works for the

1

health department. ;

.

And that was about what year?

*

. About five years ago, I believe. t l

was right -- okay. The last municipal i

city councilman that responded to a letter election

was

2007, and it was right around

that I wrote to the Hurricane Breeze, and I 17 the 2003. So it

would

have been about five I

wrote back to his response, and it was

18

years ago, 2003 municipal election.

&

shortly after that that the, around that time 19 Q. Okay. Have you

made

any complaints

that the wood rack was set on fire in

the

2 0 to anyone about Kanawha Valley Construc tion

front of

our

house. And also it was

21

since 2003?

actually the day after Channel 3 did a 2 2 A. Yes.

report about their noise that I was featured 23

Q.

And to the same people or police?

24

on

on the 11 :00 news. The next morning the

24

A. To the police department. They were

1_2_5 _ w ~ 0 ~ 0 ~ d ~ r ~ a ~ c ~ k ~ w ~ a ~ s ~ s ~ e ~ t . ~ 0 ~ n ~ f i = r ~ e ~ a ~ n d ~ t h = e ~ o w ~ n ~ e r ~ 0 ~ f ~ ____ __ a = c = t u = a = 1 l ~ y , ~ t h = e ~ p c , o ~ l = i c ~ e ~ - _ - ~ t h = e ~ c l ~ i t y ~ ~ ~ o ~ n = e ~ __ ______

Page 47 Page 49

1 1

2 the company said that I set the wood rack on 2 point had, had modified its noise ordinance

3 fire, but we had e-mail transcripts from

AOL

3 with stated decibel levels, and they violated

4 that showed that I was in the home sending 4 those. I believe at the time he was a ti

5 and receiving e-mail at the time that he 5 lieutenant, now he's a captain. Wingo cited

i

6 said that I was out in the front yard. 6 them for it,

and

the police chief at the 1

7

Q. What is the name

of

the owner, or 7 time, Mark Baker, tore up the citation and 1

8 of -- 8 basically dismissed it. I didn't think a I

9 A. I think it's Dale Sweat. I'm not 9 police chief in this state had the authority

10 sure what his last name is. He was the one 10 to do that, but that's what, that's what

11 that called -- instead of calling the fire 11 Mr.,

or

Captain Wingo told me happened after i

12 department he called the city inspector,

12

the citation.

13 which we still find interesting. Most people

13

Q. That citation was issued after 2003?

14 call the fire department when there's a fire. 14 A I believe so. ~

15 And Dolores and I were home in the house,

15

Q In response to your complaint that

16

and they pounded on our door and said, Hey,

16

followed the fire?

3

17

the front of your house is on fire. Dolores 17

A

No. The complaint was about their

18 had come home s ick from work and I was 18 noise.

It

had

nothing to do with the fire. i

19 upstairs sending and, sending and receiving 19

Q

Right. But you complain about the

20 e-mail.

20

noise again after, after the fire? I

21 Q. SO the guy that owns the crane 21 A. Correct.

22

service is the one that called the -- 22 Q. Right.

And

that was -- is that the 1

23

A

He called the city -- 23 last time you

had

any complaints about this

i

24

Q. --

city

inspector about the fire?

24

property next to you? ,

25

A. The retired city inspector, a guy by

25

A I've complained

to

the city numerous

~ : , / . : ~ , ~ ,

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13 (Pages 46 to 49)

f011 b12a-1

cae-4351-a011-04e1c42b5


21/96

VIDEOTAPED DEPOSITION OF MARK VANCE HAL BURN ,

JULY

23, 2008

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

'.8

19

20

Page

52

1

times, and they basically have told me they 2 down. It was before I moved here. It was i

were there first so

we

don't care what it 3 a slab for, at the top of the hill for many

looks like or

how

it, how much noise it 4 years, just a concrete slab. I

makes, they're just -- they're not going to 5 Q. What year was Nitro Electric

tom

I . '

do anything about it. 6 down?

Q.

And your home is maybe a football 7

A.

Well, Nitro Electric was a tenant in

field away from the inte;state, I-64? 8 the builldin

g

, and Nitro ElectricCmovedl.dout d

A. I'd say it's several iootball fields 9 probab y about two years ago. onso 1 ate

Page

50

away, but I'm not very good at distances. 10 Freightways was there when I moved there.

It's more than one. 11 CF went bankrupt and shut down nationwide. 1

Q.

And

the train tracks run fairly 12 That build ing was vacant for a time.

The ;l

close

to

the interstate there? 13 Nitro Electric rented it for a while and

ij

A.

They

run

probably a mile

or

so away. 14 then moved across town. For what reason I

Q.

From the interstate

or

from your 15 don't know. I'm, I'm assuming it was i

house? 16 because the building was sold to make room

A.

From the interstate. 1

7

for the Wal-Mart,

or

the KFC construction.

Q.

Is that --

how

far from your house?

18

And

then the building was vacant for quite

J

A. How -- I don't understand your -- 19 awhile and was tom down during the time i

Q.

Would you estimate, would you

20

that I was in South Carolina. Part of it

i

2 1 estimate the railroad tracks are from your 21 was

tom

down.

While

I was down there, I

22

house?

22

came up,

back

here for several weeks for the ;.

23 A.

A mile

and

a half.

23

birth of our child,

and

the remaining part

24 Q.

Mile

and

a half?

24

of it was

tom down

during the time that I

1_2_5 ___ A ~ . ~ P ~ r ~ o b ~ a ~ b ~ l ~ y a = b ~ o u ~ t ~ a ~ m = i l ~ e ~ a = n = d ~ a ~ h = a ~ I ~ f . ~ ________ 2 ~ 5 w ~ a s ~ h e = r = e = f I = 0 ~ r = t h = e ~ b = i r t ~ h ~ 0 ~ f ~ 0 = u = r = c = h = i l = d ~ w ~ h = i c = h ~ ____

Page 53

1

2

3

4

5

6

8

9

10

11

12

13

14

Page

51

1 i

Q.

Okay. And what other businesses are 2 was August 29th of2007.

out there before this Wal-Mart went in? 3 Q Do you know what company tore it i

There's several other businesses located close 4 down?

to your property? 5 A. I do not. :

A.

The only adjacent business to our 6

Q.

Did you have

any

complaints about,

property is the crane yard. Down the hill

7

to anyone about Nitro Electric

or

I

there's an office building that is, that's 8 Consolidated Freight or

any of

the businesses

I

called the Giz building, it's named after the 9 in that area?

Harvey Giz family. And down the hill from lOA No, ma'am.

it is a church. There used to be a truck 11 Q. Isn't there a large car dealership i

depot that then was Nitro Electric for a

12

close to your home as well?

time, and that was razed to create the room 13

A.

There are four large car dealerships

for the, now the KFC, the Arby's that's 14 close to our home.

15 under construction and the Taco Bell that's 15 Q Okay. There's more commercial

16

under construction, and those are the only

16

property surrounding you, even before

17

business -- there was a hotel on the hill 17 Wal-Mart, there was more commercial property

18 across from our home, but it was out of 18 surrounding you than there was private homes?

19

business before I moved to West Virginia. I

19

A. That's not true.

20 don't know

what

year it went out of

20

Q. Okay. I know you have a neighbor

2 1 business, I wasn't here.

21

uphill from you?

22 Q. Was that tom down, the hotel?

22

A. Well, when you, when you, when you

23

A. It was tom down. 23 say commercial property, are you -- I'm not

2 4 Q. What year was that? 2 4 understanding if you're referring to the

25 A. I don't recall what year it was tom 25 zoning or buildings and businesses.

> - ' . .:


22/96


MARK

VANCE HAL

BURN ,

JULY 23, 2008

-. Page 54

1

1

2

Q. I m just saying you

own

a private

2

3

home, you have your home, next to you is a

3

4

crane service

and then

right down from that

4

5

would

have been where Nitro Electric was,

5

6

that

would have been right

on

route --

what

6

7

route is that that runs --

if you

drive down

7

8

your road and go to Huntington? 8

9

A. Hurricane Creek Road. 9

10

Q.

Hurricane Creek Road. 10

11

A. Let me try to answer your question,

11

12

if you don t mine. 12

13

Q. I ll just

say

put a radius, like a

13

14

mile radius around your home, aren t there

14

15

more businesses

than

there

are

homes?

15

16

A. I would say probably

40

percent of

16

17

that area would be businesses and the other

17

1.8 60 percent are vacant

property

now.

The

18

19

Wal-Mart property was about 25 acres

of

woods

19

20

that the hotel

used

to sit on. 20

21

If,

if you

put

my

home in a circle

21

22

facing across the street, that was vacant

22

23

until the

Wal-Mart

went in and blew up the 23

24

hill and destroyed the neighborhood. On the

24

25

a shopping center built adjacent to the

Wal-Mart where another

home was taken

down I:

for the shopping center. One

was

for

the

Wal-Mart, one was for the

shopping

center.

Q.

SO

the

home

for the

Wal-Mart would

have been directly across from your house?

A. No. Across from

our

house was the

hill that had the hotel

pad on

it.

The

A

frame that was taken down for the Wal-Mati

J

and the pond

were up

the hill

and

to the

left. And up the hill, straight

up

the hill

was a double-wide that was taken, I

think

it

j

was a double-wide, that was taken down for

,]

the Hurricane Marketplace

shopping

center. i

Q. Okay. Well, you filed this

i

complaint

in 2007 against my

client

and

6 . ~

Cleveland Construction

and the

city.

And

I

think your, your claims

are

a little

bit

different about the city, but as far as

Kanawha Stone Company, can you explain to

me

. ;

why,

why

you have sued them?

A.

They

made

our

life a living hell. R

i

They blasted

on

a daily basis, sometimes f

Page 56

right side of our home as you re standing in

25

multiple times a day. Your, your client s

- - - - ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ = = ~ ~ - - - - ~ ~ - - ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ - - - - - - I ~

Page

55

1

2

the front yard facing forward, we have

3

residents on that side of us. In back

of

4

us there s a one-lane road that separates our

5

property from acres and acres of woods. At

6

the top

of

that hill there s several homes

7

up there. At the bottom

of

the hill you

8

have the church. The Giz building. And

9

then the church has only been there for

10

several years, prior to that the building was

11

vacant for a couple of years, and you had

12

the Consolidated Freightways. On the other

13

side of Hurricane Creek Road you now have a

14

bank that s under construction. It was

1

2

3

4

5

6

7

8

9

10

11

12

13

14

Page

president Art King came to my home, met with

me in my living room, promised me the

blasting would be no more than the whoosh

sound of a closing door.

He

lied. The

home, rocked our home. It felt many times

like being in

an

earthquake in Southern

California, which unfortunately I have a lot

of experience

of

enduring that. It caused a

lot of stress, it caused a huge amount of

nOIse.

One of their blasters was not

licensed and was cited

by

the state for not

being licensed. I belleve it was a

7

I

i

i

1

i

i

5 vacant for, that land was vacant for many 15 subcontractor

of

your client, but

16 many years.

You

have homes

back

of

them. 16 nevertheless.

1 7 On the front side of the that area you have 1 7 Your client made our life a living

18 the Saturn and the Chevrolet dealership. 18 hell and refused to do anything reasonable

19

Q.

Were there homes, during the 19 about it. He promised us a blasting

20 construction for the Wal-Mart, were there 20 schedule so that we could leave when the

21 homes that were taken down that were 21 blasting occurred and schedule other things

22

destroyed, purchased and destroyed?

22

to do then, and he never provided that.

23 A. There was, there was one home that 23 Q. SO your biggest complaint against

24 was destroyed and taken down for the Wal-Mart 24 Kanawha Stone is the blasting and the noise

25 along with a very pretty pond,

and

there is 25 from the blasting?

, , I ; \ ' ' ' . M . . , . ~ ~ l 1 h I : ~ W . i L l ' ' ' ' ' ' ' i W ' i : I } ; ~ ~ ~ -< : :W'.W t.:. ,);:;:,;. ~ ~ c . : . ~ , . U : K . " ; ' ' J . > M : , ~ $ . . : u W ' . ~ _ > l . i ' _ . , . " , \ > < . . ~ I , ~ . > a ' . i t i . t r ' - ' ; ; ~ G . ~ I . t . < . ' ' ' ' i m ; : ; 4 V . l : h . ~ \ I > ' ' ' ' ~ : ' ' , , : " ; ~ , ~ . ; : > l W " ' m . v . . . ) " " l M 1 i > ~ " ' , " ) . l . : l . . , " " , h \ \ , ~ . , " l I i i i < 1 . r . v ~ _ * , , . a ; : ~ ' 4 1 $ ; . ; o . . . \CCi -n n t t ' i ~ u ~ ' l ' : ~ I W > : t . < . ~ ~ " * ' < , , ~

15

Pages 54

to 57)

f 11

b12a-1 cae-4351-a011-04e1 c42b5


23/96

VIDEOTAPED DEPOSITION OF MARK VANCE HALBURN,

JULY 23,

2008

60

2

. The noise, the vibration -- 2 blasting occurred you put, you

made

mention I

Page 58

Page

3 Q. The noise -- 3 of it in your blog?

4 A. -- the deception, the unlicensed 4 A. Not every time but many times. I

5 blaster. 5 Q. During the time period of the

6

Q.

Well, the unlicensed blaster was 6 blasting, that about six months there in

I

8 employed by a different company. But -- 7 2007, what, during that entire time period

?,

A. It

was employed

by

Kanawha Stone. 8 what was your employment?

9

Q.

I don't think so, but

we

don't have 9 A. I was working for Cingular until t

10 to disagree about that now. 10 January, and then I went to work for PRe.

11

In

terms

of

Kanawha Stone, your 11 I also published my web site, and then I

12

complaint against Kanawha Stone is the 12 work, went to work for Channel 15 in South

13 blasting and the subsequent noise and 13 Carolina. 1

14

vibrations from the blasting? 14 Q. SO you were working for Cingular.

15 A. And shock waves from the blasting,

15

Was it a full-time job?

1

176

yes. 16 A. Yes. We already established that.

, ~ . , 1

Q. Okay. And you recorded I guess in 17 Q. And I can't remember which ones are

18

your, in your blog you recorded, made a

18

full-time or not, but what were your hours

19

record of every time that blasts went off 19 at Cingular?

20 that you were present at home; is that 20 A. As we said earlier, it was about 2

21 correct?

21

to 11, 3 to 11 the majority of the time.

22

A. That I was present at home, yes. 22 The first six weeks I was with the company

23

Q.

You didn't --

23

it was a 9 to 5 training schedule, and I

:\

2 4

A.

Many times I left during the

day

2 4 prefer to work in the evenings for issues

of

1_2

___ j ~ u ~ s t ~ t ~ 0 ~ g ~ ( e ~ t ~ 0 ~ u t ~ o ~ f ~ t ~ h ~ e ~ n ~ i g ~ l h ~ t ~ m ~ a ~ r e ~ s l ~ r u ~ a ~ t ~ i o ~ n ~ ______

~ 5

__

b ~ e ~ i n = l g ~ a ~ b l ~ e ~ t ~ o ~ r u ~ n ~ e ~ r r ~ a ~ n d ~ s ~ a n ~ d ~ n ~ o t ~ m ~ i s ~ s ~ w ~ o ~ r ~ k ~ ,

__

Page 59

Page

61

1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1

that your client put us in. 2 being able

to

run the web site and things

Q.

Can you recall what months the 3 like that. Now that we have the baby,

blasting, how long the blasting occurred? 4 taking him to doctors' appointments, I can do

j

A. I recalled

--

I don't recall 5 that during the day and still get to work on

specifically. There's notes in the blog.

motion for summary judgement by kanawha stone containing the deposition and resume of mark halburn

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