U.S. 35 construction yields five lawsuits

By Lawrence Smith | Aug 13, 2009

WINFIELD - Five lawsuits have been filed in Putnam Circuit Court recently relating to construction of the new U.S. 35. Four deal with damages to property from blasting with one alleging the construction was used as front for an investment scam.

All four property cases were filed by Fraziers Bottom residents against Mountaineer Grading Company. Mark and Roberta Burks on July 2, and Delia Akers, Danny and Catherine Akers and Calvin and Tonja Akers on July 16, all make nearly identical claims that blasting conducted by the Elkview-based company near Staves Branch and Evergreen roads during the spring and summer of 2008 damaged their property.

All four suits allege that Mountaineer Grading caused damages to the plaintiffs' respective properties that included "blast/vibration damage to their dwelling, dust damage and diminution in the value of their property." Also, all the suits allege the blasting resulted in a trespass and nuisance which resulted in, among other things, "loss of enjoyment of property, loss of recreational activities, diminished quality of life, annoyance and inconvenience."

All the plaintiffs seek unspecified damages, court costs and attorney fees, and are represented by David R. Barney Jr. with the Williamson law firm of Thompson Barney.

$750K and blue sky

In the midst of the Burks' and Akers' filing their suits, Donald R. Carter filed his on July 6. In his suit, Carter alleges Debbie Joyce conspired with persons and corporations unknown to swindle him out of $750,000.

According to court records, Joyce, a Hurricane resident, approached Carter in May or June 2006 with an offer to buy 75 acres "near or adjoining the construction of the new West Virginia Route 35." The exact location of the property is not stated in court records.

However, Carter alleges, Joyce, who made it clear she was just an agent and not the property's owner, said in exchange for Carter buying the 75 acres at $10,000 an acre, she would help him resell it to a " 'Utah Company'" for a "150%-250% profit."

Relying on Joyce's representation that "the sale to the 'Utah' company was 'already finalized,'" Carter purchased the property. The date of the purchase is not stated in court records.

Eventually in March, Carter discovered that all of Joyce's statements were false including the existence of the third-party Utah company.

In his suit, Carter makes claims against Joyce for breach of contract, fraud, negligence and civil conspiracy. In addition to return of his $750,000, Carter is seeking unspecified compensatory and punitive damages, court costs and attorney fees.

He is represented by Hurricane attorney D. Adrian Hoosier II.

The Burks' suit is assigned to Judge O.C. "Hobby" Spaulding with the others, including Carter's, assigned to Judge Philip M. Stowers.

Putnam Circuit Court, Case Nos. 09-C-194 (Burks), 199 (Carter), 217 (Delia Akers), 218 (Danny and Catherine Akers), 219 (Calvin and Tonja Akers)

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