WEST VIRGINIA RECORD

WINFIELD – A judge has dismissed part of a lawsuit regarding the construction of the Hurricane Wal-Mart.

Senior Status Judge Bob Chafin tossed out part of Mark and Dolores Halburn's case against the City of Hurricane. The portions of the suit against Kanawha Stone and Cleveland Construction remain, according to attorney Harvey Peyton.

Peyton is representing Dolores Halburn. Mark Halburn, who is the publisher of www.putnamlive.com, dropped out the case earlier this year.

The Halburns originally filed the case in 2007. In their original complaint, the Halburns named the city of Hurricane, City Manager Ben Newhouse, Cleveland Construction Inc. and Kanawha Stone as co-defendants. The Halburns alleged their constitutional rights were denied by selective enforcement of ordinances, primarily noise ordinances.

Construction blasting and noise near their home, the Halburns alleged, restricted the "peaceful enjoyment of their premises, have interfered with the postal delivery to their residence and have otherwise acted so as to constitute an unreasonable and substantial interference with the private use and enjoyment of plaintiff's land, without just compensation."

During a June 4 hearing, Chafin dismissed the City of Hurricane as a defendant. Peyton said he is considering appealing that dismissal to the West Virginia Supreme Court.

Cleveland Construction and Kanawha Stone had filed motions for summary judgment on the nuisance issues. Chafin denied those motions at the June 4 hearing.

Peyton said a jury will decide whether the conduct of those two companies was unreasonable for the year or so they did work on the site and if Dolores Halburn suffered damages because of the companies' conduct.

On his Web site, Mark Halburn has been outspoken in his disdain for Wal-Mart and the construction process that he says disrupted his family's life.

Putnam Circuit Court case number: 07-C-298