Kasey Hughes

8/10/2019 Kasey Hughes

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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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No.1644

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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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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


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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FOR THE COUNTY OF DES CHUTES

In the matter of; )

ase No. 10ST0027MS

Kasey Hughes, )

Legal Memorandum

in Opposition to

Petitioner,

)

espondent's M otion for

Summary Judgment and

and

)

n Support Motion for

Unlimited Stalking Order

Robert B. F oster,

)

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


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.




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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

0

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


Phone: (541) 741-8220

FAX: (541)741-8234


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No.1644

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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



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Robert E. Franz Jr.

Post Office Box 62


Phone: (541) 741-8220

FAX: (541)741-8234


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No. 1644 .

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


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Robert B. Franz Jr.

Post Office Box 62


Phone: (541)

741-8220

FAX: (541)

741-8234


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0

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



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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


FOR THE COUNTY OF DESCHUTES

In the matter of:

Case No. IOSTOO27MS

Kasey Hughes,

Petitioner,

AFFIDAVIT of


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


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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271

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Robert B. Franz Jr.

Post O(flco Hnx 62


Phone: (541) 741-82211

PAX; (541)741.5234

Page 2 - Affidavit of Robert E. Franz, Jr,


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No.1644

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a


9

KASEY HUGHES,

10

Petitioner,

Case No. 10ST0027MS

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V.

STALKING PROTECTIVE ORDER

12

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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No. 1644

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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

14

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

17

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

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Is referred to Deschutes County Mental Health.

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/I

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II

50 2 STALKING PROTECTIVE ORDE R Page 2 of 2

Exhibit A Page 2



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1

THE COURT FURTHER FINDS

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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.

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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

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DATED this

f

day of March,

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IS A. MICHAKL,AOLE

33

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Circuit judge A. Michael Adler

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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



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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



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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


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


Exhibit B Page 2



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1

IN EX

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3 EXAMINATION BY:

PAGE

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s. Meisen-Vehrs

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5 r. Duncan

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7 XHIBITS:

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etter dated 4/2/08

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Exhibit B Page 3



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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:

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.

r. Palcic, can you say your name for the

12

record.

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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.


Exhibit B Page 4



21/59

1

2

3

4

5

6

7

0

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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

Exhibit B Page 5



22/59

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

29

25

r

JuH

:5UPM

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


Exhibit B Page 6



23/59

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2

3

4

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7

8

9

10

11

12

13

14

15

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17

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19

20

21

22

23

24

25

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


Exhibit B Page 7



24/59

u .

: 50PM

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


25/59

u .

.

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



26/59

u .

: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



27/59

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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



28/59

u .

:51 PM

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,


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


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



29/59

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


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



30/59

u .

012

: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


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



31/59

u

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: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



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



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



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



35/59


36/59

u

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:54PM

No.1644 .

6

MICHAEL ALLEN KENNEDY

1 3

1

TN 7HE CIRCUIT COURT OF Tilt STATE OF OREGON

1


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


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



37/59

u

:55PM

No. 1644 .

7


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


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


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


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


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

Kasey Hughes

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