Patnode Unlimited Stalking Order

7/26/2019 Patnode Unlimited Stalking Order

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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:

atnode v. Foster

, et al.

Date:

onday, July 9, 2012

Num ber of Pages (including this cover sheet): 139

Attached are the following documents:

1.

Motion for U nlimited Stalking Order;

2. Legal Memorandum in Opposition to Respondent's Motion for

Summ ary Judgment and in Support of Motion for Unlimited

Stalking Order by Petitioner Joseph Patnode,

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 action 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.1641

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In the matter of:

)

ase No. 10ST0028MS

Joseph Patnode, )

M otion for

Unlimited Stalking

Petitioner,

)

rder by Petitioner

Joseph Patnode

and )

Robert B. Foster, )

Respondent. )

COMES NOW Petitioner Joseph Patnode, 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 Petitioner 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 Memorandum in opposition to

respondent's motion for summary judgment and in support of its motion for

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF DES CHUTES

Robert E. Franz Jr.

Peal Office Box 62

Springlleld, OR 97477

Phone; (541) 741-8220

PAX: (541)741-8234

Page 1 - Motion for Unlimited Stalking Order


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unlimited stalking order; the exhibits, affidavits, declarations attached to the

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Legal Memorandum; and all of the petitions, amended petitions, and pleadings

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in the trial court file.

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DATED: Monday, July 9, 2012.

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Respectfully submitted,

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By:

LAW OFF

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Robert E. Franz, Jr.

SB #73091

Email: [email protected]

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P.O. Box 62

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Springfield, OR 97477

Telephone: (541) 741-8220

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Facsimile:

541) 741-8234

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Attorney for Petitioner

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Rohen E. Franz Jr.

Post Office Box

62

Page 2

-

Motion for Unlimited Stalking Order

Springfield,

OR 97477

Phone:

(541) 741-8220

FAX

(541)741-8234


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CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing

MOTION FOR UN LIMITED

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 M onday, 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 W eiss

Tonkon Torp LLP

1600 Pioneer Tower

888 SW F ifth Avenue

Portland, OR 97 204

Of Attorneys for Respondents

Dated: Monday, July 9, 2012.

/s/ Robert E, Franz. Jr.

LAW O FFICE OF ROBERT E. FRAN Z, JR.


SB

#73091

P.O. Box 62


E-Mail: [email protected]

Telephone: (541) 741-8220

Facsimile; (541) 741

-8234


1 hereby cerjlAX this

document is a true and

correct copy of the original.


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FOR THE COUNTY OF DESCHUTES

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In the matter of:

)

Joseph Patnode,

)

Petitioner,

)

and

)

Robert B. Foster, )

Respondent.

Case No. IOST0028MS

Legal Memorandum

in Opposition to

Respondent's Motion for

Summary Judgment and

in Support Motion for

Unlimited Stalking Order

by Petitioner Joseph Patnode

COMES NOW Petitioner Joseph Patnode, 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 Summ ary Judgment by Petitioner

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Robert B. Franz Jr.

Post Office Box 62


Phone: (541)741-8220

FAX: (541)741-8234


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I. Plaintiff's Motion is Barred by the Previous Orders of this Court, and

Petitioner is Entitled to an Unlimited Stalking Order on the Merits and

Because Respondent is not Medically Cleared to Testify in These

Proceedings.

A. The issues raised by the Respondent have already been decided

against him

In his motion for summary judgment, the Respondent does not produce

any facts or admissible evidence that contests any of the facts set forth in the

Petitioner's Original and Amended Petition for a Stalking Order; nor does he

offer any facts or other admissible evidence show ing he did not stalk the

Petitioner; rather, he merely argues that the Stalking Order should not have

been issued against him in the first place. Respondent's motion is too little, too

late, because the issues have already been decided against him.

ORS 30.866 (1) Provides as follows:

(1) A person may bring a civil action in a circuit court for a court's

stalking protective order or for damages, or both, against a person if:

(a)

The person intentionally, knowingly or recklessly engages in

repeated and unwanted contact with the other person or a member of that

person's immediate family or household thereby alarming or coercing the

other person;

(b)

It is objectively reasonable for a person in the victim's situation to

have been alarmed or coerced by the contact; and

(c)

The repeated and unwanted contact causes the victim reasonable

2pprehension regarding the personal safety of the victim or a member of

the victim's immediate family or household.

Because R obert 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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Roben E. Franz Jr.

POSL Office Box 62


Phone: (541) 741-8220

FAX; (541)741.8234


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On March 5, 2010, Judge Edward Perkins found there was probable

cause to issue a Temporary Stalking Protective Order against the Respondent

based upon the Petitioner's Original Petition for a Stalking Order, and based

upon 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

Petitioner's immediate family or household, and it w as 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 Adler. 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 unwanted contact with petitioner or a member of Petitioner's

Page 3 - L egal Memo randum in Opposition to Respondent's


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Robert E. Frnnz Jr.

PoI Office Hal 62

Springlleld, OR

91477

Phone: (541) 741-8220

FAX: (541) 7411&234


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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 Medically Able to Testify.

At this time, Petitioner also requests the Court to enter an unlimited

stalking order because the Respondent is not medically able to testify. As the

trial court file shows, the trial was set to comm ence on July 27, 2011. On July

Page 4 - L egal Memorandum in Opposition to Respondent's

Motion for Summary Judgment by Petitioner

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Roben B. Franz Jr.

Poi Office Box 62

Springficld, OR 97477

Phone: (541)741-8220

FAX (541)741-8234


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1, 2011, the Respondent filed a motion to postpone the trial in this matter for

2 arious reasons. The m otion was denied by Judge Michael Sullivan on July 26,

3 011. Thereafter, on July 26, 2011, the Respondent filed an amended motion

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o postpone the trial because the Respondent "has a diagnosed medical

5 ondition that prevents him from being able to participate in a trial." The

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otion to postpone was then granted on that basis.

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The trial was reset for April 24, 2012. On M arch 28, 2012, the

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espondent filed a motion to postpone the trial because of the unavailability of

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itnesses. At the hearing on the motion to postpone, after the motion was

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denied by Judge Sullivan, the Respondent was ordered by Judge Sullivan to

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ppear for his deposition prior to trial. Then, again, on April 19, 2012,

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Respondent filed a second motion to postpone the trial of April 24, 2012,

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because of the medical condition of the Respondent. The Respondent has

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refused to submit to the court-ordered deposition because of his medical

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condition. The m edical condition was based upon the following note from Dr.

16 Wade Parker, M.D.:

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"Mr. Robert Foster has been a patient of mine since April 2011. He

suffers with depression, anxiety, and post-traumatic stress disorder.

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urrently his symptoms are not well controlled with my treatment and in

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my opinion he is not mentally stable to participate in his upcoming legal

deposition or other court related matters under oath. I have

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recommended we obtain psychiatric clearance prior to these depositions

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and court appearance. Appropriate referrals have been made. Once

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cleared by psychiatry he can then under go the requested depositions and

court appearance. If there are any questions please le me know."

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To date, Mr. Foster has not been cleared by psychiatry. The trial has been

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postponed twice because of the Respondent's medical condition, which now

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has lasted 15 months. The Petitioner should not be required to wait any longer

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for an unlimited stalking order.

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Robert 13. Franz Jr.

Page 5 - L egal Memo randum in Oppo sition to Respondent's

Springfi ld.

OR 97477


Phone: (541) 741-8220

FAX: (541) 741-8234


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II. None of the Stalking Incidents in this Case Involve

Protective Speech

The Respondent contends that the initial stalking order issued in this case

should never have been issued because the conduct that supported the stalking

order was based upon protective speech. This contention has already been

ruled upon at the time of the granting of the amended petition, and fails for two

reasons. First, the conduct complained of did not involve protective speech.

See

exhibits, original Petition, and Am ended 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 Qr. 670, 261 P.3d 1189

(Or. 2011).

DATED: Monday, July 9, 2012.

Respectfully submitted,

BY: /s/ Robert E. Franz. Jr.

LAW

OFFICE OF ROBER T E, FRANZ, JR.


SB #73091

Email: [email protected]

P.O. Box 62


Telephone: (541) 741-8220

Facsimile: (541) 741-8234


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Robert E. Franz Jr.

Post01ficc Box 62


Phone: (541) 741-8220

FAX: (541)741-8234




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FOR THE COUNTY OF DESCHUTES

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In the matter of:

Case No. 10ST0028MS

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Joseph Patnode,

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Petitioner, AFFIDAVIT of

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and in Support of Petitioner's

Response to Respondent's

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Robert B. Foster,

Motion for Summary Judgment

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1esJ2Qu

it.

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19 State of Oregon

ss.

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0 County of Lane

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I,

Robert E. Franz, Jr., being

first

duly sworn, do depose and say as

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follows:

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1. 1 am over the age of 18, and I make this affidavit based on personal

knowledge of the facts contained herein.

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2. 1 am the attorney representing Petitioner Joseph Patnode the above-

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entitled matter.

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Robert E. Free Jr.

Post Offica flox 62

5 rk

td,OR97477

Page

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Affidavit of Robert B. Franz, Jr.

Phone: (54 )

741-8220

FAX:

(541)741-8234


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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 Palcic 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 E Deposition transcript of Kasey Hughes taken May 21, 2010.

Exhibit F Deposition transcript of Joseph Patnode taken M y 21, 2010.


SUBSCRIBED and SWORN to before me this day of July,

2012.

L 6EAl

C

FRANZ

O-0pE.ON

No. A9s7

aNotary P Iblic

for

Ore on

9m)

RCH 7 2019

g

My Commission Expires:___

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

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Robert E. Fmnz Jr.

Post Office BQX 62

SppringfelJ.OR

97477

Pltvne: (541) 741.8220

FAX: (541)741-8234


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$ FOR THE COUNTY OF DESCHUTFS'

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)

JOSEPH PATNODE,

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Petitioner, ) ase No. 10ST0028MS

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V.

)

TALKING PROTECTIVE ORDER

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OBERT B FOSTER,

).

Respondent. )

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)

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OTICE TO RESPONDENT: Violation of this Stalking Protective order may result In your arrest and criminal or

civil penalties. This Order is onforceable In every state. Review this order Carefully. Each provision must be

15

beyed.

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A hearing was held on March 19, 2010. Petitioner appeared with attorney Hanna Melsem-Vehrs.

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espondent appeared with attorney Frank Wesson. The Court hereby finds by a preponderance of the evidence

18 hat Respondent Intentionally, knowingly or recklessly engaged In repeated and unwanted contact with

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etitioner or a member of Petitioner's Immediate family or household and thereby alarmed or coerced

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etitioner. The Court further (Inds that It Is objectively reasonable for a person in Petllioner's situation to have

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een alarmed or coerced by the contact and that the repeated and unwanted contacted caused Petitioner

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easonable apprehension regarding the personal safety of Petitioner or a member of Petitioner's Immediate

23 amily or household; therefore

24 IT IS HEREBY ORDERED that Respondent Is restrained (prohibited) from intentionally, knowingly or

25 ecklessly having contact, as directed below, with:

26 etitioner

[]

ther:

502STALKING PROTECTIVE ORDER Page lot 2

Exhibit A Page 1

Petitioner's Response


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CONTACT MEANS:

b

All conditions listed below.

Coming within 1000 It Into the visual or physical presence of the protected person.

Following the protected person.

El

Walling outside (lie home, property, place of work or school of the protected person or a member of that

person's family or household.

Q

Sending or making written communications in any form to the protected person.

Speaking with the protected person by any means.

[] Communicating with the protected person through a third person.

[]

Committing a crime against the protected person.

Communicating with a third person who has some relationship to the protected person with the Intent of

affecting the third person's relationship with the protected person.

o

Communicating with business entities with the Intent of affecting some right or Interest of the protected

person.

[] Damaging the home, property, place of work or school of the protected person.

Delivering directly or through a third person any object to the home, property, place of work or school of

the protected person.

IT IS FURTHER ORDERED

Respondent shall undergo a mental health evaluation by (Mental Eval Deadline) and undergo treatment

as Indicated by the evaluation.

The Court finds that Respondent Is without funds to obtain a mental health evaluation or treatment and

Is referred to Deschutes County Mental Health.

///

///

///

502 STALKING PROTECTIVE ORDER Page 2 of 2

Exhibit A Page 2



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THE COURT FURTHER FINDS

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] Respondent represents a credible threat to the physical safety of the protected person and the protected

a erson Is or was

4 the spouse of respondent

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)] the parent of a joint child with respondent

6 cohabltaling with respondent

7 p a child of respondent or an Intimate partner of respondent

8 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,

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This Order is of unlimited duration.

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R)

This Order Is effective until June 15, 2010,

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ERTIFICATE OF COMPLIANCE WITH THE VIOLENCE AGAINST WOMEN ACT: This Stalking Protective Order meets

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he full faith and Credit requirements of 18 U.S.C. sec. 2265 (1994). This Court has jurisdiction over the parties

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nd the subject matter. The Respondent was afforded notice and timely opportunity to be heard as provided by

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he law of this Jurisdiction. This Stalking Protective Order is valid and entitled to enforcement In all Jurisdictions.

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18 DATED this Jlday of March, 20,1,,,7

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/0/A. MICHAEL ADLE R

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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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1 N THE CIRCUIT COURT OF THE STATE OF OREGON

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OR THE COUNTY OF DESCHUTES

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4 n the Matter of:

JOSEPH PATINODE,

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Plaintiff,

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7 s.

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OBERT B. FOSTER,

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efendant,

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ase No, 105T0028--MS

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EPOSITION OF HUGH PALCIC,

15 aken on behalf of Petitioner, pursuant to notice, at the

16 offices of Karnopp Petersen LLP, 1201 NW Wall Street,

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uite 200, Bend, Oregon, before Pamela M. Sylvester,

18 Shorthand Reporter for Perfect Word Reporting & Video and

19 otary Public for the State of Oregon.

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PERFECT WORD REPORTING & VIDEO (541) 3@8--2896

Exhibit B Page 1



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3

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APPEARANCES

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or 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

PERFECT WORD REPORTING & VIDEO (541) 388-2896

Exhibit B Page 2



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INDEX

EXAMINATION

BY:

PAGE

Ms. Meisen-Vehrs

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Mr. Duncan

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EXHIBITS:

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etter dated 4/2/08

6


Exhibit B Page 3



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HUGH PALCIC

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1 HURSDAY, SEPTEMBER 23, 2010, 1:30 P.M., BEND, OREGON

2

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HUGH PALCIC,

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alled as a witness herein on behalf of

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laintiff, having been duly sworn upon

6 ath by Pamela M. Sylvester, Notary Public,

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as examined and testified as follows

B

9 EXAMINATION

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Y MS. MEISEN-VEHRS;

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. r. Palcic, can you say your name for the

12 ecord.

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he full name? Hugh Palcic.

14 . nd what is your occupation?

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work for the Sunriver Owners Association.

16

.

nd what is your title?

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.

urrently, assistant general manager.

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.

hat are some of your duties as assistant

19 general manager?

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. s assigned I guess would probably be best.

21 t manage the community development department. I also

22 oversee the environmental department, and I oversee the

23

ecreational department; however, there is directors for

24 both of those who handle the day-to-day use of both of

25 hose departments.


Exhibit B Page 4



20/81

u

012

No. 1641

.

0

HUGH BALCIC

6

1

.

o you know the respondent Bob Foster?

I

2 .

es.

3

.

o you recall having a conversation with

4

ob Foster the week before April 2nd, 2008?

5

.

es,

6

.

id you write a summary of your

7 ecollection of that conversation?

8

.

es.

9

.

o you have an independent recollection of

10 what was said during that conversation without referring

11 to your summary?

12 .

t's extremely vague. I have basics, but

13

he written summary, which I have read before, is the

14

ecollection that I have.

15

(Exhibit 14 identified.)

16

.

kay. I'm going to show you what's been

17

arked as Exhibit 14.

18 s this the summary that you wrote?

19

R. DUNCAN: Can

I see copy of that?

20

S. MEISEN-

VEHRS:

Yes.

21

HE WITNCSS: Yes.

22

Y MS. MEISEN-VEHRS:

23

. hen did you write that?

24 .

ou know, I don't recall. Shortly after

25

he request.

PERFECT

WORD REPORTING

& VIDEO (541) 388-2896

Exhibit B Page 5



21/81

Jul.

.

012

:40PM

No. 1641

.

1

HUGH PALCIC

7

1 .

as it shortly after April 2nd, 2008, the

2 date at the top?

3 .

don't recall the exact date,

4 .

as it around that date?

5 .

t's around that date, yes,

6 .

s that your signature at the bottom?

7 . es.

8 , ugh, can you read the statement into the

9 record?

10 .

kay. It's dated 9/2/08. Last week, I

11 received a phone call from Bob Foster, Bob called to

12 nquire as to why, quote, authorized vehicle only,

9

13

nquote, signs were installed at the SROA Administrative

14

uilding. He also wanted to know who authorized the

15

nstallation.

I told him that to the best of my

16 knowledge, that our General Manger, Bill Peck approved

17

he installation. With regard to the question of why, I

18 told him that I could only speculate on an answer and

19 hat he would need to pose that question to Bill Peck

20 hen he returns from vacation.

21

asked Bob why the installation of signage

22 at SROA would be of concern to him and he explained that

23 he regularly drives through the parking SROA lot

24

sometimes twice a day) and believes that the signage may

25 have been installed in response to his actions. I asked


Exhibit B Page 6



22/81

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

9

Jul.

.

012

:40PM

No.1641

.

2

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. MEISEN-VEHRS: That's all I have.

EXAMINATION

BY MR. DUNCAM:

Q.

r. Palcic, looking again at Exhibit 14 --

excuse me, for the record, my name is David Duncan. I'm

the attorney for the respondent Bob Foster.

A.

h-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



23/81

Jul.

.

012

:40PM

No.1641

.

3

4/2/08

Last week, I received a phone call front Bob P oster. Bob called to inquire as to why

"authorized vehicle only" signs were installed at the SROA Administrative building. He

also wanted to know who au thorized 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 he

would treed to pose that question to Bill Peck when he returns from vacation.

I asked Bob why the installation of aignage at SROA would be of

it

concern to him and

he explained that he regularly drives through the parking SROA lot (sometimes twice a

day) and believes that the siguage may have been Installed in response to his actions, I

asked him why lie would drive through the parking lot of SROA. Iie 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), Ilia

SR Chief of Police visited my office to discuss this phone

conversation and asked inc to write down my recollection of that exchange. This is, to

best of my recollection, what transpired relative to this matter.

Director of Community Development, SROA

Exhibit 14

Exhibit B Page 8



24/81

Jul.

.

012

:40PM

No.1641

.

4

Hughes, et cal. vs.

Foster

John McKenzie

February 16, 2011

Perpetuation

REPORTING

VIDROCONBBRBNCING

172 Gnat 8th Ayeiae

1? igene, OR 97401

Original File MCKENZIEJOHNPERP.TXT

Exhibit 26

rp ii7

-Sel 7i)1 a) wit/i IYUIra lucks

Page 1

Exhibit C Page 1



25/81

Jul.

.

012

:40PM

No. 1641

.

5

el Hl. vs.

Perpetuation

Page I

1

2

N THE 01UUIT COURT OF TEE STATE OF ORBOON

3 IN AND FOR TIN COUNTY OF DESCNUTBS

4

6

In the Hettor of,

IUHHY HUGHES,

6

flutterer

one Ito. lOST00AINS

7 R00911Y B. POSTROipondent.

B ue,

In the Netter Oki

9 JOSEPH INTRUDE,

Petitioner,

10

nd N.. l0e'TOOIBNe

11

ROBERT N. FOSTRee

penden E.

12

13

14 bfPOSITIOH OF JOHN HOIENSIE

15 Pebtuety 16th, 2011

16

Rodno.dey

17 2115. )1.

15 (Appeering

by

Telephone)

19 PHNPCTUATAON 01 TESTIHOHY

VHS DEPOSITION OF

JOHN

HeHBBIIB Na. taken

et the let office. of Henneh Heleen-Veh'B, 720 B

Street, Springfield, Oregon, before Robin

C... Idy-Dunn, CSR-RPR, Cestifioa Shorthand Reporter

to and for the SkAte Of Oregon.

Pago 2

APPEARAHCAS

For

the

PatLtlonera,

NH. BANIIAR HEIBBN-VEHHS

130 B Street

Sptingfleld, Oregon 91411

531/941-3220

For the Reepohdentl

1115SOH A DUNCAN

12925 61 66th Avenue, Suite 101

Portland,

Oregon

99222

502/292-5122

By, } , FRANK S, 115550)1

(Appearing by telephone)

Al

Pr..ontl

HR,

ROBERT FOSTER

(Appeering by telephone)

Reported 1,y,

ROBIN CABaIOY-DURMI, CSR.RPR

CC REPORTIHO

P

VIDEQ1,OHFEREIICI110

EUOEHE

4l/44E-0111

Tom FREE 900/add-0903

Pago 3

INDEX

HiT HR O B .................................... PA O N

JOHN HoRANLSS

BY HS. HEIs.N-NEARS

4

BT HR. H55501

23

ExHtSITSI Hone Larhed.

Page 4

1

JOHN McXENZIE,

2 having been first duly sworn to testify the Iruth,

3

the whole Inch, and nolldug but the truth, was

4 examined and testified on

follows:

5

6

EXAMINA'nON

r BY MS. MEISEN-VEERS:

8

Q. Mr.

McKenzie, this is Hannah Melsen-Vehrs.

9 This Is

going to be a perpeluatlon deposition in the

to trial

of Kasey Hughes versus Robert

E. Poster and

11

Joseph Pnmode versus Robert

E. Poster.

12 ou just had your discovery deposition

13 taken. I vin going to

ask you song questions.

14 Remember that you

'

re still under 0011, and, even

is though you've answered the questions previously.

16 g ive

us a full

answer again, please-

17 .

Okay.

IB

. Can you please slate your

full name?

19 A. John Edward McKenzie.

20

Q.

And spell your last name.

21 . M-c-K-e-n-zri

-e,

22

.

And whet is your current occupation?

23 A. Manager

of plant operations And

24 mnintennnce.

2s Q. And where do you work?

:\iiR-

Ildicripl

5,

Exhibit 26

(1) Pages 1.4

Page 2

Exhibit C Page 2



26/81

Jul.

.

012 :41 PM No. 1641

Hughes, el al. vs. Perpeluallon

John McKenzie

Foster

February 16, 2011

Page 6

Page 7

1 . heaton Franciscan Healthcare.

1

.

kay. Go ahead.

2

.

nd how long have you held that job?

2 .

h, I'm sorry. I'm going to use the w ords

3 .

eptember of 2010.

3

older than Inc.' 50s, mid 50s mayb e. Just

4

.

kay. And can you tell me briefly some of

4

peculating on age. White m ate, grayish hair, long

5 our work history before that? 5

-

usually was in it ponytail or under a bandauma.

6

. eah. I was director -- I was plant 6

lender to average build.

7 anager for Envision Architecture from September of

7

One mom ent. I need just n second.

6

008 to Septenber 2010.

9 .

hat's fine.

9

Prior to that I relocated from Bead.

9

(Off-the record discussion.)

in

regon, to Waterloo, and the, from Occcnibcr of 2006

10

.

nd I believe somewhere between five-ten

11 o June of 2008 1 was director of public works for 11

o six feet tall, as best I can recall.

12 unriver Owners Association.

12

Y MS. MEISEN-VBHRS:

13 rior to that I was director o f facilities 19 .

o you know what kind of vehicle lie

14 or Weiss M emorial Hospital in Chicago, Illinois.

14

rives?

1s

How far back would you like me to go?

is .

n early 2000 while Ford pickup, standard

16 .

hat's fine. Thanks. Con you tell me 16

ab.

17

our

educational background? High school or

17 .

nd did you observe him driving in (lint

In

ollege?

16 uck around Sunriver?

19

.

ome college. I went through the Navy

19

.

es.

20 ucicur propulsion program when I was in the 20

.

an you tell are about some of the

21 ervice.

21 ncounters that you had with Bob Foster?

22 .

id you say sonic college?

22

.

e had multiple encounters with, him during

23 .

onic college, yes, nin'am.

23

ad construction going Through stop paddles,

24

.

kay. And then the

Navy?

24

riving too close to loggers, not complying with

25

.

es, ua'am. 25

he direction of the Baggers.

page 6 Page 0

I

.

nd you have a high school degree? 1

During snow removal he would pull out in

2

.

igh school diploma. yes. ma'mn.

2

ront of the snow removal equipment causing thorn to

3

.

m, you tell me what your main duties were 3 ake evasive action.

4 s the public works director for the Sunriver Owners

4

We would get phone calls from hill)

5 ssociation?

s omplaining-- I would get phone calls and

6 .

ure. I was responsible for all 6

oicemnlls from him, complaining about mad

7

nfrastructure operation and maintenance, which 7

onstruction activities that impacted his business

a ncluded all roads, pathways, common areas, parks, a

nd how

unhappy

lie was with those activities.

9 ools, Sunrivcr Association buildings --just about 5

.

oin

going to address some of

those one at

10

nything inside the Sunriver boundaries with the to time.

11 xception of

water, sewer, and the eleeiric service.

a

.

ure.

1s

.

ere

you

In a supervisory role in that

12

.

an

you

explain what

it

menus to go

13 apacity? 13 hrough a stop paddle?

14 . es, ma'am, 14 . ure. When we are doing

15

. ow

many people did you supervise

Is

R. WESSON I

didn't hear that

16 pproximately?

16 uestion. Con lie explain lvhnl?

17 . 'm going to say app roximately on average 17

MS, MEISEN-VBHRS:

Wbnr it

means

ago

19

6

to

20. 1a hrough a

stop paddle.

19

. nd while you were the public works

19

R. WESSON:

A stop paddle?

20 irector, did you come to know Bob P oster who

is the

20

MS. MEISBN-VBHRS: Yes,

21

espondent in this case?

21 MR. WESSON: A

stop paddle, What are

22

. es. I had sonic interactions with him. 22 ou

talking about?

as . re you able to describe what lie

looks

23

MS. MEISBN-VBHRS:

Well, that's the

26

ike?

24 uuestion.

25

.

can,sure.

25

MR. WESSON:

What's a stop paddle?

M ro

t,

sn;nt i' Exhibit

26

(2) Pages 5-8

Page 3

Exhibit C Page 3



27/81

Jul.

.

012

:41PM

No. 1641

.

7

Hughes, et al. vs.

Perpetuation

Foster

1

MS. MBISEN-VBHR S: I ant going to have

2

Jelin explain dial.

3

THE WITNESS; Let me know w hen I can

a begin.

5

BY MS. MEISFN-VBHRS:

6 Q. Go ahead.

7

. Okay. During road construction, when we

a have to shut down a travel Inne so that crews can

9 work on the Not safely, we position Baggers at

10

ellherend,

11

And they have -- you've probably seen

12

them, people standing out with poles that are 6 feel

13

tall that have l4-inch stop signs on one side and on

14 the other side of that paddle is

it slow -- enlarged

1s slow warning paddle.

16

We coil those slop paddles, And those are

17

to direct vehicles when it is safe to proceed And

1u

under the direction of those Baggers so that the

19

crews can w ork safely in the travel lops.

20 Solo answer your question what it means

z1 to blow through (he slop paddle is is wh en the

22

Bagger communicates and when n certain amount of

23 vehicles go pa st, we stop traffic in one direction,

24

let it clear, and then w e allow traffic in too other

25

direction to Bow to keep continuity of traffic up

Page 10

1 and down Ike road.

2 At certain points we hav e to cut off cars

3 so that we can keep continuity and as we rotate the

a sign from slow to atop. Bob would continue to drive

s post, Ignoring the stop sign that was being

6 displayed by the Bagger, That's what is meant by

7

blowing the stop paddle.

B Q. And did you on occasion personally observe

9 Bob Foster blowing through the stop paddle?

to

. Yes.

i1

. Did that put you or your employees in

12

danger?

13 MR, WESSON: Objection. Calls for

14

speculation. Go ahead and answer the question, but

15 1 have an objection.

16

MS. MEISBN-VE HRS: That is fine.

17 BY MS. MBISEN-VBHRS:

to

. Go ahead, John.

19

. Yes, If vehicles aren't following the

ao direction of the flag safely crews, then the people

al performing the work Pro assuming one thing Is going

22

on when something else is going on. W ith their bock

23 to traffic at times, It Is an unsafe situation. We

24

like to know where the vehicles are at and how they

as are proceeding.

Page 11

MR. WESSON: Hannah, I have a question

In old of my objection. Just one question.

MS. MEISEN-VBHRS: Okay.

MR. WESSON; Old you see Mr. Poster

blow these slop peddle signs?

THE WITNESS: Yes.

MS. ME[SBN-VBHRS: Well, I believe--

MR. WESSON: I couldn't hear him,

9

tialnlnll.

10

THE WITNESS : Yes, I did.

11

MR. WESSON: Did he answer or not?

12

THIS WITNESS: Yes, I did.

13

MR. WESSON: Okay.

14

BY MS, MEISBN-VEHRS:

is Q. Okay. How often did you observe Bob

x6

Foster driving through a stop paddle?

17

. Once -- myself, once personalty, but I

1g

received multiple comp laints from any staff,

19

MR, WESSO N: Objection, So you only

20

saw hint doll once?

21

THE WITNESS: Correct.

22

MR. WESSON: All right.

23 BY MS. MBISBN-VEHRS:

za

. Now, moving on, can you explain what in

an means to dart out In Front of a snowplow?

Page

12

x

. Sere. During-- the one observation l

2

made was, as we were removing snow on Bcovcr Drive

3

going north of Sunriver Village towards C ircle 11,

a about halfway up the road we observed Bob's truck

s stopped at an intersection.

6

As we oppronched within 50 to 100 feet of

7

that intersection, Bob pulled out in front of us And

e turned left causing any driver to take evasive action

9

by slnmmuing on the brakes and then the snowplow

10

tripped and pulled us towards the shou lder.

ii .

Did the put you his dangerous situation?

12

A. Yes. When you have a 20,000-pound --

13

MR. WE SSON: Ob jection. Calls for n

to conclusion.

is BY MS. Me1SBN-VBHRS:

16

Q. You can answer,

i, A. Yes. When you have a 20,000-pound truck

18 on

it snow-covered road that has to slant on their

19

brakes, you kno w, it takes u long time for us to

20

stop, and when you're being pulled towards the

21 shoulder, It creates on even more dangerous

as situation.

23

Q, Did you see Me. Foster observing the

24

snowplow?

25

. Yes. He looked directly at us.

.Ihit;. eritd4:,

(3) Pages 9.12

Exhibit 26

Page 4

Exhibit C Page 4



28/81

Jul.

012 :41PM

No.1641

.

8

Hughes, el iii. vs.

Perpetuation

Foster

Pane

13

1 Q. Did you over get complaints from your

2

employees about Bob Foster?

3

. Yes,

4 Q. Approximately how manyy complaints do you

5 think you received?

s

. More than 20 in niy year and ti half as

7 director,

a

, Were the complaints related to safety?

9 A. Yes,

10 MR. WESSON: Related to who?

11 MS. MBISfN-VEHRS: Safety.

12

MR. WESS ON: I'm sorry, Hannah. Did

13 you any Stacey?

14

MS. MEISBN-VUHRS:'fheir safely.

is MR. WESSON; Oh, solely. Ijust

16 couldn't hear. I understaid now, Go ahead.

17 BY MS. MBISBN-VEHRS:

1e Q. Did you ever observe M r. Poster parked

19 behind the Sunriver Owners Association

20 administration building?

21 . Yes.

22 Q. About how often did you see him back

23

there?

24 . Tluee or four tines.

as . Did you ever see him speed out of [lie

Page

14

i parking lot?

2

. Yes,

3 Q. About how ninny times?

4

. I observed it once.

s Q. Did you ever see other members of the

6

community doing similar behavior?

I A. No.

9 . Was there a lime (hat you posted signs in

9 back of the S unriver Owners Association

to administrative building?

it

. Yes.

12 Q. Can you remember what the signs said?

13 , To the best of m y recollection, they said

14 Sunriver SROA vehicles only. Something to that

Is effect. I may not have the ex act wording correct.

16 It's been quite a while.

I7

. Why did you post those signs?

IS . In direct --It was a direct action of

19

Mr. Foster's parking behind the bu ilding or--

o there's a small drive on Ike south side of the

u administration building.

12 , So it was to address the problem of

13 Mr. Foster parking in the back?

14 , Yes. And on that access road on the south

is

end of Ike building.

Page 15

1

Q. Were you ever aware of why M r. Poster was

a doing that?

3

MR.IVESSON: Objection. Calls for

4 speclllatIon.

5 BY MS. MEISEN-VEHRS:

6 Q. You can answer if you know.

7

. Okay. I can relate what was told to me

e during due approval process.

9

MR. WESSON: Objection, No hearsay.

to BY MS. MBISEN-VEHRS:

1r

Q.

Were you ove r told by Mr. Poster why lie

12 was doing that behavior?

13 . No.

14 Q. Okay. I'm going to move on. Did you

ever

Is have it

conversation with Mr. Foster at the local

16 grocery store about his behavior towards your crew?

17 . Yes.

18 Q. Can you recall what Mr. Poster said to you

19

to start that conversation?

20

. Best of my recollection was that I w as

21 gelling lurch at ilia country store and Mr. Poster

az approached ilia with some complaint about the slurry

23 sealing Operations that were going on at the time.

24

told him that I really wasn't going to

25 enterinin any of his complaints at the time until he

Page IB

I

could demonstrate that he could act sorely around my

2 crew.

3

e said something, WWch I don't remember,

a but -- and then as lie was walking away from me

S that lie could do anything lie wanted because of his

6 connections III

the community.

7

t Ihnl Ibile I basically (old him Ih01 it

a lie was going to have that altitude 11101 If any of my

9 crew we re hurt then I would dea l with it myself.

10 And at (hat point he walked away.

11

nd (ion hint conversation was related to

12 the general manager of (lie Sunriver Owners

13

Assocla(lon.

14 .

Let one clarify a bit. Did you tell

is Mr. Foster Ihal your crew was instructed to report

16

complaints to the Sunriverpollce?

17 A. Yes. Yes, ma'am. They were also

in instructed not to engage with hinn.

19

Q. Okay. So did lie have a response to your

20 comm ent that you were telling your crew to report

21

his behavior to the police? Did Mr. Poster have n

2z

response?

23

. Best of my recollection, that is when the

24 comment came on that lie wasn't worried because he

25 had connections in the conun unity.

T11nI ldiu ipt9s

(4) Pages 13. 16

Exhibit 26

Page 5

Exhibit C Page 5



29/81

Jul.

.

012

:42PM No.1641

.

9

of nl. vs.

Pei Pei on I [on

Page 17

1

. Did he explain

M inn Iliose coiineciions

2

were?

3

A. No.

a Q. Did you kiiow what he meant by that?

5 . I hod assumptions.

6 . Well, what did you Think he meant by that

7

at the time?

a

MR. WESSON: Objection. Calls for

9 speculation. That's truly an objectionable

10

question, Hannah. What do you think?

i1 BY MS. MEISEN-VBHRS:

12

. Just a second, John. Don't answer flint

13 just yet.

is

MR. WESSON: If you asked do you know.

Is

That might be a better way of asking the question

16 but--

17

MS. MEISEN-VEHRS: P rank, your

1s objection is on the record. Tha t Is fine.

19 BY MS. MEISEN-VBHRS:

20

. Okay. John, did yo u -- at this time in

al

your

tenure as public works director, did you

12 believe that Poster had the a bility [o hurl one of

27 your crew members?

ra

. Yes.

re

MR. WESSON: Objection. Calls for

Page l0

speculation.

MS. MEISEN-VEHRS: This Is about his

belief at the time about whether Poster was capable

of hurling somebody. That's relevant.

MR. WESSON: A human being can hurl a

human being. What has that got to do with this

case? There's been no charges filed by the Sunriver

Homeown ers Association against Bob Posner, You are

just trying to trump up charges, Hannah.

MS. MBISBN-VIIHRS: Well, this case is

about Mr. Foslerk stalking behavior, so it is

absolutely relevant to this case.

MR. WESSON: What has safety go[ to do

wllh stalking behavior?

MS. MEISEN-VEHRS: What do you think

they are afold of? That's the ultimate question.

Now, if Posner was displaying behaviors that he was

capable of hurting somebody, than that Is relevant

and he can answer of his own belief about That at

the time based on his observations.

MR. WESSON: Well, again, I object for

all the reasons have stated.

MS. MEISEN-VBHRS: Okay, That is

fine.

BY MS. MEISEN-VEHRS:

Pago 19

1

Q. Goalmad,John.

2

. Can you repent the question one more tittle,

3

Hnnnnh?

4

, Did you believe at the (tine that you were

5 serving as director of public works tint Bob Poster

6 was capable of hurting somebody on your crew?

7

. Yes.

6

Q. Was that based on the behaviors that you

9 personally observed from him?

to A. Yes.

11

Q. Did you report your concerns about Bob

12

Posner to anyone at the Sunriver Owners Association?

13 A. Yes. The general manager, Bill Chapman.

14 Q. And did you report them to the police?

is A, Yes, We did make some reports to the

ie police.

17

MR. WESSON: In aid of my objection,

1a haven question, Hannah.

19

MS. IvWISEN-VEHRS: What Is it?

20

MR.

WESSON: When did you report your

21

opinion flint he could hurt people to Ille. Sunriver

22

Police Department?

23

MS. MEISEN-VEHRS: I think your

24

putting words In his mouth. 1 think lie reported his

as concerns but, John, go ahead and answer when you

Page 20

1 made your reports.

a

THE WITNESS: As 1 stated earlier, we

3

made reports when he didn't obey the stop paddles,

4

and we explained what stop paddles were earlier.

a You know, [hose are legitimate safely concerns.

6

MR. WESSON: I just want to know when.

7

February 12th? July 31st? December 25? When did

a you report them, and the year, by the way?

9

THE WETNESS: The year would be 2007.

to I can't give you an exact data from three and a half

11

years ago. I don't think I can give you (ha exact

12 date.

13

MR. WESSON: Thank you.

14

BY MS. MEISEN-VEHRS:

1s

. The year is fore, John.

16 . Sure.

17

Q. Did you ever observe Bob Foster

in intemrpling a traffic stop that was being conducted

19 by the Sunriver police?

20 A. No.

21 Q. Did you ever see or heor Bob Foster

22

yelling at the Sunriver police?

23 A. No.

24

. Okay. Do you have file statement in front

2s

of you that you prepared?

llbr-U-:icriprT

Exhibit 26

(5) Pages 17 - 20

Page 6

Exhibit C Page 6



30/81

Jul.

.

012

:42PM

No. 1641

.

0

et al, vs.

Perpetuation

21

1 . I do.

2 , Okay Does (lint statement at the top say

3 Slntemenl Regarding My Interactions wllh Bob Foster

a as Director of Pablle Works for Sunriver Owners

s Association?

6 . It does.

7 . And hint's four pages long?

a A. Yes, ma'am

9

. Pitt you draft that stnlemenl yourself?

to A. Yes, ma'am.

11

.

And was [lint based on your recollection--

12 your independent recollection or the events that

13 happened while you were public works director?

14 . Yes, ma'am.

1s

. And is that an accurate reflection of your

16 memory?

17 . As best as It can be, yes.

is MS. MEISEN-VEHRS: Okay. So I'm gohng

ig to submil to enter Itiat document into evidence.

20 MR. WESSON: Well, I'm going to object

21 to the introduction of it into evidence because It

22 contains nunnemus examples of hearsay.

z3

And he says its accurate. How does

24 lie know its accurate when lie is reporting what

25 other people told him?

Page 22

So queslioll the veracity of the

documenl in general. Par example, he talks about

there are phone calls and voicemails received

multiple limes during my time as director. so that

means those phone calls were between Deccnm berof'06

and June of

0K, and the pertinent Issues pertaining

to Mr. Poster occurred just prior to June'08, and

most of Ihls stuff that he has testified to -- the

slurrying of the roads and so forth -- occurred In

'07.

So this document Is fraught with

Inaccuracies, inconsistencies, and hearsay evidence,

sot object to it.

MS. MEISEN-VEHRS: Well, my only

response to that would be that lie has testified as

to the details dint are contained in this document,

and lie has testified as to (lie veracity of the

document, but we can just leave that for trial and

(lie judge.

So I have no further questions right

now, John.

THE WITNESS: Okay.

MS, MEISEN-VEHRS: Frank, do you have

any questions?

MR, WESSON: Yeah, I do have some

Page

23

1 questions

. Lei's

just pick up right where we were.

2 Your documenl -- what's the exhibit number by the

3 way ,

Hannah? Hannah

,

what's the exhibit number?

4

MS. MEISEN-VEHRS: Well, haven't

s given It an exhibit number because it hasn't been

6 entered into evidence.

7

MR. WESSON: You're going to save it

a for trial . Right?

9

MS. M21SEN

-

VEHRS: Yes.

to

Off-the-record discussion.)

11

12

EXAMINATION

13

Y M R . WESSON;

14

.

All right. I've got some questions about

is

his statement,

Mr. McKenzie.

16

.

Uh-huh,

17

.

Did anyone ask you to prepare this

1e

tatement?

19

.

Yes.

2e .

Who nsked you to prepare it?

21 . SunriverPollceDepartment.

22 .

Who specifically at the Sunriver Police

23 eltdment?

24

.

I believe it was Sergeant Patnode.

2s

.

And did lie discuss -- did you discuss with

Page 24

t him what the slatemenl should contain?

2 A. No .

3

. Did you review the statement with Ida

e before you finalized It?

s A. No.

6

. And when you finished preparing it, (lid

7 you send it to him?

s . I faxed it to the Sunriver Police

Department.

to Q. And were you asked to make tiny revisions

11 to it?

12 A. No.

13

. Did you fox this on May 13, 2010, at about

14 9:19 in the morning?

1s

. I believe was the 13th of May. 1 can't--

16 Q. May 13th,2010?

17 A. Yeah.

to

. All right, Let's see. Bear with me. I'm

19 just looking to -- How many direct conversations did

20 you have face to face

-- not

over the phone -- with

21 Bob Poste during the year and a half that you were

22 there?

23

. One face-lo-face interaction.

24 Q. And when was that?

25

. That was the Incide

n

t in the Sunriver

dill-I; it flpl

~

, :,

Exhibit 26

(6) Pages 21-24

Page?

Exhibit C Page 7

Petitioner

'

s Response


31/81

Jul.

.

012

:42PM

No. 1641

.

1

Hughes, et al. vs.

Perpelunlion

John McKenzie

Foster

February 16,2011

Pag4 25

page

27

1

Country Store.

1

called?

2 Q.

kay. So you never had Any other than

2

MR. WESSON: None of your business.

3

that; just that one?

s

MS. MEISBN-VBHRS fin not going to

a

A. orrect.

4

ask what you talked about, but I have a right to

5

Q. ow, how many

telephone

conversations did s

know if you're getting information from somebody,

6

you have with him?

6

from some outside source.

7

A, ore than 20 that one summer of 2007.

7

MR. WESSON: I'm going to move oil with

e Q.

hal was the summer of '07?

s

any questions.

9

A.

es.

9

MS. MEISBN-VBHRS: All rigid, We will

10 Q.

nd That was dealing mainly with tine

10

[elk later.

11 slurrying of the roads. Correct?

it

DY MR.IVESSON:

12 A. nd the other road construction events,

12 Q.

et's see here, Did you make a record of

13 yes.

13

those 25-plus phone calls that sunnier of 2007?

16 Q.

o did you slurry all the roads in

14 A.

o.

15 Sunrlver that summer?

1s Q.

id you make any personal reports to the

16

A.

o.

16

Suurlver Police Department yourself?

17 Q.

o you remember the roads that you did 17 A.

oncerning?

1e slurry? 1s

Q. ob Foster.

15 A. here were approximately 30 cul-de-sacs

19 A.

es.

20 that got slurry sealed.

20

Q.

hen did you make those reports?

21 Q. ad-dc-sacs? How about mule roads, like

21 A. uring 2007.

22

Deaver Drive or Cottonwood Drive?

22 Q.

o you know when during 2007?

23

A, e did overlay oil River Road That summer. 23 A.

hat's almost four years ago. I could not

24

There was a few other projects. I don't remember

24

give you an exact date. Those

--

25

exactly what they were. 25 Q.

Inaudible) of those phonic calls?

Page 2a

Page 2a

1 Q.

o ill ask you more questions here. Let

1 A.

ot by me. You could Ask Ilse police

2

me see here. I am asking questions. I've got to

2

department if they made

if

record,

3

call you back, Goodbye. 3 Q.

nd who did you talk to at the police

4 So my wife called me on my cell phone, so

a department?

5 forgive me.

5 A.

he typical person that would Answer the

s A.

understand,

6

phone was the officer manager At I lse police

7

MS,

MBISEN-VEHRS: Frank, have

you

7

depnrment.

e

been receiving other phone calls during this time?

a Q. kay. The same answer that

you

gave In

9

MR.

WESSON:

Occasionally I get

n

9

your discovery deposition. Correct?

in

phone call, yeah.

10

A.

believe so.

11

MS.

MBISEN-VEHRS: And who are they

11

Q. kay.

Do you

have any training in mental

12

from?

12

licahhcam?

13 MR. WESSON: None of your business. 13

A.

o.

14 MS. MEISBN-VBHRS: Well, if somebody

la

Q.

rc

you

a college graduate?

15 is having conversations with you during testimony,

15 A.

o.

16 It

is

relevant.

16

Q.

hat's the highest education

you

have?

17

MR. WESSON:

That was my wife. Ijust 17

Are you

n high school graduate?

in cut him

off. So Ilia

talking

-- is

A.

es.

x9

MS. MEISBN-VEHRS: Who else has

19

Q.

id

you discuss your testimony

with anyone

20

called?

20

prior to this deposition today?

at

MR,

WESSON: Hello?

ax

A. o.

22

MS.

MEISEN-VEHRS: Are

you

talking to

22 Q.

ou

had no dIscussion with anyone about

23

me? 23

what your testimony might be?

24

MR. WESSON: Yeah. Are you

there?

24

A. o.

The only discussion

I had was

date

25

MS. MBISEN-VBHRS: Who else lisa

25

and lime.

Nita.t S,:ripl?'

Exhibit 26

(7) Pages 25-20

Page 8

Exhibit C Page 8



32/81

Jul.

012 :43PM No. 1641 2

Hughes el N. vs.

Perpeluntlon

Foster

1

. On the paddles -- on life stop paddles, did

2

you ace any of those violations that you said

3 Mr. Foster violated -- the stop or slow?

a

know what you are talking about. 1

5 didn't know they were called stop pa ddles, but I

6

know Ihnl now, and I know what you're talking about.

7

Did you see him run -- blow past a stop

S

paddle?

9

. Yes.

10

Q. And where did you see that?

11

A. We were on Beaver Drive.

12

Q. How far away w ere you?

r3

. Probably 10 feel.

1a

. So were you in a vehicle?

15

. No. I was standing oil the road.

15

. And usually those people stand in the

17 middle

or

Ille road. Correct?

19

. Typical operation, yes.

19

Q. On this day In question, do you remember

20

when that was -- the date of Ihut?

21 . Ida nor remember the exact dole, no.

22 . Was it a sunny sununer day?

23 . It was n spring day, but it was sunny.

a4 Typicnlly all road construction was done before

a5

Memorial Day.

Page 30

1 Q. So you do your road construction before

2 Memorial Dny?

3 . Yes.

4 . And is the wea ther usually sunny or rainy

5 then?

6 . Central Oregon, take your pick.

7 . All right. The some question: Was it

s sunny or rainy?

9 . As I said just a minute ago. it was sunny.

to We don't do road construction during the rein.

11 Q. Okay. And you said--did anyone say

12 nnylhing to Mr. Foster when lie blew Through the slop

13 paddle?

14

. No. It's not possible to do That.

15

. Well, did you make a Dula of his license

16 plate number?

17

. I couldn't hear you. Cou ld you repeat file

18

quesllon?

19 Q, Did you make a ante or record of his

20

vehicle license plate number?

a1

A. Na.

22

. The instructions that -- sometimes those

23

stop paddle people sometimes will led someone to go

24

ahead even [laugh It says slop. Is that correct?

as . I've never seen that Instance.

I

. I've experienced It m yself.

2

. Well,l can say--

3 MS. MEISBN-VBHRS: H old on. Hold on,

4

Let John finish his answer.

s

. Those individuals are trained by one

6

Oregon Department of Transportation flag program,

7

and that cbnlculurn always dales that never ha ve

0

anybody proceed with a stop paddle displayed, so if

9 you observed that. you didn't observe it by my crew.

so BY MR. WESSON:

11 . so

your crew had that training?

1s

A. Yes.

13

. And the person that was holding the stop

14

paddle that day, do you remember who that was?

15 A. I do not remember, no.

16

Q. Would there be a record of who that person

17 was That day?

1s

. Probably not.

19

Q. Is there n chance some might have received

20

the training and some might not have received the

21 Iraiuing7

22

MS. MEISEN-VEHRS: Objection. Thai

23

calls for speculation.

24

BY MR. WESSON:

a5 . So nil your people had the training?

page 32

1

. Before they can act as fogme 11, yes.

2

Thal's Ilse official title.

3

, (Innudible) were they Sunriver employees?

4

A. Sunriver Owners Association employees.

5

Ms. MEISEN-VEH RS: Sorry, Frank,

6

You're going to have to repent you r question,

7

BY MR, WESSON:

e Q. Are these regular employees of the

9 Sunriver Homeowners Associnlion?

10 A.

By regular do you mean fulltime employers?

11

. Well. not necessa rily full lime, but they

12 were employees; DOI

temporaries or anything like

13 that?

14

. Oh, no. They are regular employees.

a5

Q. All right. Do you remember w hen it was

16

Thal the incident with the snowplow occurred?

17

. Yeah. it would have been the winter

1s

between 2007 and 2006.

.1g

. Okay. And what do you arena that Idle

20

snowplowlripped? What does that mean?

21

. Not to get too technical, but you would

22

have a snowplow that is on an articulating head, and

23

That head is sensitive to vehicle -- changes in

24

vehicle direction. And If you have to make an

25

evasive nmaneuver, that blade call dig into [lie

..\lira- th:Ar

ii l' :

Exhibit 26

(8) Pages 29.32

Page 9

Exhibit C Page 9



33/81

Jul.

.

012

:43PM

No. 1641

.

3

Htuglres, cl iii. vs.

Perpetuation

Faster

Pego 33

1 asphalt during Ihnl maneuver and at that polo it

2 will act as an anchor an d will pull the vehicle to

3 one direction or the other depending on the position

4 of the steering wheel.

5 MR. WESS ON: Okay. What I'd like to

6

do now is I would like to talk to m y client, so I'm

7

going to put you on hold a nd get in touch with my

a client, Okay?

9

THE WITNESS: Okay.

10 MR. WESSON: He can hear me saying

11

this, so I'm going to call him. All right? So I'm

12

going to pill the phone on ho ld while l talk to him.

13

MS. MEISEN-VBHRS. Okay. We'll just

14

lake a short break. We will he here.

15

MR. WESSO N; Don't hang up. I'm just

16

going to put you on hold.

17 (Recess: 3:12 to 3:15 p .tu.)

1e

MR. WESSON: Are you There?

19

MS. MEISEN-VBHRS. We are here.

20

THE WITNESS; I ant here.

21

MR. WESSON; I've got a line Bashing

22 here. I'm hying to gel it dealt with Bear w ith

as me. A ll right,

24 BY MR. WESSON:

25 . So I've got a couple more questions,

Page 34

1 Mr. McKenzie.

2 . LJh-huh,

3 . So It was in the sp ring of'07 that the

4 road slurrying began. 1s tha t right?

s

. As every year, yeah, In the spring .

6

Q. And did you have any Issues with the

7 slurrying being too soft and getting on c ars or

a sticking to the wheels of cars and causing some

9 problems with peoples' vehicles?

.0 MS. MEISEN-VBHR S I am going to

.1 object. That is irrelevant.

.2 MR. WESSO N: Well, it is not

.3 irrelevant. It is Very relevant beca use it deals

4 with the Issues, and you w ill no it unfold here in

5 a ndnnte when I ask the rest of my questions.

6 MS. MEISEN-VEHRS; Well, go attend and

.7

ask the rest. I'm just staling my objection.

e BY MR, WESSON:

9

. So were there such issues?

.o

, Not during my term as director. Maybe

:1 before my--

:2

. There Weren't some issues dealing with

13 Sunriver having to paint vehicles because of the

14 slurrying getting on the vehicles?

5 . I believe you're referring to an incident

1

that happened before was public Works director, so

2

1 can't speak to that issue.

3 . All right. But did anything like that

4

happen when you were the director or

public works?

5

. No, no.

6

. All right. Do you remember one of Ilre

7 entrances to Sunriver being blocked or blocked

3

off because of slurry -- the stickiness of the

9 slurry?

10

A. Not during my term as director,

11 . Okay.

12

. The Incident you are referring to happened

13 prior tonic arriving.

14

. Okay. All right. Let me see if I've got

15 any more questions here.

16

All right. On the Issue of the posting of

r7

the signs behind -- or a sign was posted to tinrit

is vehicles using that particular road around the

19

Sunriver Homeowners Association buildbtg. Correct?

20

. Correct,

21

. Could anybody us e it prior to That sign

22 being posted?

23

MS. MEISEN-VEHRS: Objection. Calls

24 for speculaliot.

2s BY MR. WESSON;

Page 36

1

. Well, if there wasn't oily sign. I suppose

2 anyone could use it. Right. Mr. McKenzie?

3

MS. MBISBN-VEHRS: You can answer

4 that, but my objection stands.

s

. The intended use of that road was for

6 company vehicles.

7 BY MR. WESSON;

n

. But there was no sign saying it Was

9 limited to that. Correct?

10

. Correct.

it

. All right. So there wouldn't be anything

12

wrong with someone other than an employee o f

13

Sunriver Homeowners Association using that road?

14

MS, MEISEN-VEHRS: Objection. Calls

115

for speculation again. He doesn't have pe rsonal

16 knowledge of dial.

17 BY MR. WESSON:

19

. You worked in That building, didn't you,

19 Mr. McKenzie?

20

. I did not. I worked in the public works

a1

building, which is directly to the south.

22

Q. How far awa y? 50 feet? 100 feet?

23

, 50 yards.

24

. All right. 50 yards, I50 feet. So who

25

ordered -- Did you put those signs up yourself, or

,11ia.1).'iri'i V1

Exhibit 26

(9) Pages 33 - 36

Page 10

r'_,.,,. nn

Exhibit C Page 10



34/81

Jul.

.

012

:43PM

No.1641

.

4

airs.

Perpehallou

1

someone from your department?

2 . Someone from my department installed the

3

signs.

a Q, Did you know they were going to be

5

inslalled?

6

A, Yes,

7

, Who ordered them installed?

A

. General manager, Bill Chapman.

9

. Bill Chapman isn't the general manager

anymore, is lie?

A. No.

Q. When did lie leave Sunriver?

A. I think he --ill remember correctly. he

left February of 2008, to the best of my

recollection.

Q. So lie left before you left?

A. Correct.

Q. And when were those signs pill up around

the SROA building?

A. My best recollection was Imo summer 2007,

maybe early full.

Q. Okny. Do you know who the current general

manager is?

A. No. I could tell you who the general

manager was when I loft. but don't know who the

Page 3e

1 general manager is.

2 Q. Who was the general manager when you loft?

3

. Bill Pcck.

d

. Well, he Is still the general manager.

5 . That's good to liens, That's a good thing.

6 MR. WESSON: l'nl just looking here, I

7 think I am done.

B

MS. MBISEN-VRHRS: Okay.

9

MR. IVESSON Hong on. I have no more

LO

questions.

11 MS. MEISBN-VEi-RtS: 1 don't hove any

questions elilier.

(T1le deposition was concluded

at 3;21 p.m.)

I Skate of Oregon

ee.

2 county of band

3

4

, Roble c.aaldy-Duren, CaR -RFR, a certi fied

5 shorthand Reporter for the state of O regon, certify

6 Chet the vltne.. sea Sw orn end the transcript g. a

7 true record of the testimony given by the vitnesul

0 that at said ties end piece r reported all testimony

9

and other oral proceedings had gn the foregoing

10

Matter, that the forego ing tran.orlpt eon.iatin, of

11 3s pages contains a felt, true and portent

12 t nroript of weld proveedinge repented by e to the

13 ben t of vy abi l ity On said date.

14

f any of the portion or the nitmad requested

15 .ay lax o f the kreneor lpt of the tL.e of the

16 proceedings, such correotion pngaa are attaohad.

17

is

H14HltO WHEREOF, i have yet .y hand end CaR

10 eoat thin 17th day of

rs6eyery 2011, in the City of

19 Epgene, county of Lane, state of Oregon.

Robin Cee.ldy-Duren, csR-RR

can He. 90-0090

.il. (3.srrlpi;p

Exhibit 26

(10) Pages 31-39

Page 11

Exhibit C Page 11



35/81

J

u

012

No. 1641

.

5

MICHAEL ALLEN KENNEDY

1

N THE CIRCUIT COURT OF THE STATE OF OREGON 1


2

on THE COUNTY OF DESCHUTES 2 called as a vi tngss on behalf Of Respondent, being

3 JOSEPH PATN0DE,

3 first duly sworn to tell the truth,

he whole truth and

4 etitioner,

4 nothing but the truth. was examined and testified as

5

s.

Case No, 105T0028-Hs

S follows:

6 ROBERT B. FOSTER,

6

EXAJXNATION

7

espondent,

7

.

BY HR. WESSON)

hief xebnedy, would you

8 KASEY HUGHES,

a state and spell your name for the court reporter.

9

etitioner, 9

.

kay,

t's Michael Allen Kennedy,

10

s.

Case No. 105T0027-MS

10 M-I

-

C-N-A-E-4, A-L-L-E-N, K-E-H-H-E-D-Y.

11 ROBERT B. FOSTER,

11

.

ou understand I'n going to take your

12

espondent.

12 deposition today?

13 13 .

understand.

14

14 .

nd it's due to the two stalking orders that

15

EPOSITION OF

PIIX]iAfL AU EN x N

NEDY

1$ Officers Patnoda and Hughes Filed against Bob Foster.

16 commencing at 9:30 a.m. on Tuesday, June 15. 2010, at 16 re you aware of that?

17 591 S.X. Hill View Way, Bend, Oregon

7702, before

17

.

am.

18 GENIE L,

ELLEY, .P.R.,

.X., .S.R.

90.0149,

1$

.

'm going to ask you a series of questions

19

19 regarding those stalking orders.

20 20

e you understand that?

21

21

.

understand.

22

22

.

f at any time YOU don't understand one of

my

23

23 questions, please say so and I will repeat it or

24

gQR

F1lc

Nb.

:

365

24 rephrase it until you do understand the question.

75 25

n you understand this rule?

1

APp ARAN S OP COUSIc

EL

2

For reddenera :

3

ROBERT E. FRANZ. JR.. ESq.

730 B Street

4

Springfleltl, Oregon 97177

$ For Respondent

:

6

FRANK S. WESSON, ESq,

7

Watson Q ~

arlsob and Swanlund

Suie

9115 SW Oleson Road

8

Portland, Oregon 97223

9 Also

present :

Rg5 y Hughes

10

3O9eph Fatnode

11

Robert roster

12

13

% N n F x

14

bTN1INATXAY SW ;

15

15

IR. WESSON

17

FYNIBITS FOR IQUILLrICATION

18

ONE

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

on you understand that?

6

. understand.

7 ,

ll of your answers must be verbal since the

B 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 wards?

12

.

do,

13 ,

ou must speak clearly and distinctly, oo you

14 understand that?

15

.

understand.

16 ,

f you do not knew the answer to a question,

17 simply state you do not know. I do not expect you to

1$ guess or to speculate as to responses.

19

n you understood that rule?

20

.

understand.

21 . lease make sure your answers are clear for

22 the record so the court reporter can accurately

23 transcribe each of the words you state.

24

o you understand that?

25

.

understand.

EAU

3

f] 1J

kennedy

CASCADE COU RT REPORTERS (541) 3855664

ages I to 4

Exhibit b Page I



36/81

u .

012

:44PM

No. 1641

.

6


1 .

lease wait until I finish each of my

2 questions before answering, and I will Wait until you

3 finish each of your answers before I ask another

4 question. In this way the court reporter keeps a clear

5 record without interruption.

6 o you understand that?

7 ,

understand.

a

. we will take a break about every 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

11 please request one and wo will take one,

12

o

Patnode Unlimited Stalking Order

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