Threat of criminal contempt kicks up controversy
by Michelle Lore
Judge enters, then reverses order.
In an unusual turn of events, a Hennepin County District Court judge recently reversed his own order requiring a plaintiff and his Chicago law firm to show cause why they should not be sanctioned for constructive criminal contempt.
The litigation in the underlying case has been going on since 2006, when the plaintiff, Bradley Buscher, sued, among others, Demars Construction, alleging that they had botched a remodeling job on his Minnetonka home. Specifically, the plaintiff maintained that deficiencies in how the companies performed the project led to fungal growth in the exterior walls and wall-cavity materials.
Judge Thomas Wexler has already concluded that the plaintiff and his law firm, Childress Duffy Goldblatt Ltd., submitted false affidavits and memoranda in response to the defendant’s motion for summary judgment. The judge last month ordered sanctions, setting a hearing for July 11 to determine how much those sanctions should be.
The judge had also ordered that the plaintiff and the law firm show cause why they should not also be held in constructive criminal contempt of court for violating two procedural rules — Rule 11 and Rule 56.07, which pertains to submitting affidavits in bad faith. (Constructive contempt is for an action or actions that occur outside the presence of the court.) The plaintiff was also ordered to show cause why he should not be held in contempt of court for violating a court order that he not have contact with a key witness.
“Here the purpose of contempt would be in the nature of criminal contempt, to punish conduct that has occurred in violation of oath (sic) to tell the truth or violating professional duties of candor to the court,” Wexler wrote in his April 22 Preliminary Order for Fees and Costs. “Short term incarceration and/or monetary sanctions would appear to be the only remaining considerations for criminal contempt, if criminal contempt is ultimately found.”
Minneapolis attorney Deborah C. Eckland, who represents defendant Demars Construction, told Minnesota Lawyer before the show-cause order was reversed: “It’s the first time I’ve ever seen anything like [this order] in a civil case — and I’ve been practicing for [almost] 20 years.”
Hanson declined to comment on the matter. Minneapolis lawyer David F. Herr, who filed a notice of appearance last week on behalf of the Chicago law firm, also chose not to comment.
Revealing report
The case centers around some remodeling the plaintiff had done to his home in the late 1990s. According to his complaint, in July 2004, the plaintiff discovered deficiencies in the work had given rise to a mold infestation.
The plaintiff sued various contractors and subcontractors involved in the project in 2006, seeking in excess of $2 million. At all times during the litigation, the plaintiff was represented by the Childress law firm. Initially, the plaintiff had retained the law firm of Briggs and Morgan to serve as local counsel, but late last year substituted Dorsey & Whitney.
The defendants sought summary judgment, contending that the plaintiff’s claims were untimely. They asserted that the plaintiff knew about the alleged mold problems as early as 2002, but waited to sue until 2006, after the two-year statute of limitations for such claims had expired.
In opposition to the summary judgment motion, the plaintiff submitted an affidavit stating that he had been told by an indoor air quality investigator, McGregor Pearce, in April 2002 that the results from his mold sampling were within the normal range and that there was no evidence at the time of a water-intrusion problem.
At a hearing in July 2007, the court became aware that Pearce had also issued a written report of his findings in June 2002. The judge requested a copy of the report, but was never provided with it. Nonetheless, in October 2007, he issued an order denying summary judgment, based on the plaintiff’s and his attorneys’ representations.
Report found
After Wexler’s decision, defense counsel discovered that she had a copy of the June 2002 report that the plaintiff had failed to produce. Finding parts of the report to be inconsistent with the plaintiff’s sworn testimony, she furnished a copy to Wexler.
After reviewing the report, Wexler concluded that the plaintiffs and his attorneys had substantially misrepresented the contents, which included indications of multiple mold problems within the house. That evidence was important because the presence of mold would be consistent with a finding of injury, which directly relates to the statute of limitations issue on summary judgment, Wexler wrote.
Among the misrepresentations Wexler found had been made were the following:
• The plaintiff’s affidavit said the investigator told him “that the results from his mold sampling were within the normal range,” but the report actually said, “[t]hese results are mostly within the normal range. Elevated levels were measured in the two upstairs bedrooms and in the carpet samples in the basement.” (Emphasis added.)
• The plaintiff’s affidavit said that the investigator told him he “saw no evidence at the time of a building envelope water intrusion problem.” The report actually said, “I find no obvious evidence of a serious envelope problem related to the stucco finish on your home.” (Emphasis added.)
The plaintiff’s affidavit and memorandum also completely omitted reference to other findings in the Pearce report that were harmful to his case, Wexler determined.
The judge found that it was clear that the plaintiff and his attorneys had the Pearce report at the time of the affidavit, and that the language in the plaintiff’s affidavit was not from the plaintiff’s recollection of a five-year-old oral conversation with the air quality investigator, but was drawn from the language of the Pearce report.
In a judgment that the plaintiff is appealing, Wexler vacated his previous order and granted summary judgment for the defendants.
Minneapolis attorney Garth J. Unke, who represents another defendant, Bill Zimmerman’s Stucco Co., said the judge’s dismissal of the claim on summary judgment was appropriate.
“The [plaintiff’s] conduct was egregious … and the judge agreed,” he said, declining further comment on the case.
Jurisdiction questioned
The plaintiff and his Chicago law firm disputed the court’s jurisdiction to proceed with constructive criminal contempt charges, arguing that doing so would violate constitutional separation of powers.
In the letter to Wexler last week, Hanson wrote that the court should refer the matter to the Hennepin County Attorney’s Office for consideration of whether criminal charges should be brought.
“[U]nder controlling case law, the prosecution of such contempt must be done by the county attorney; a jury trial must be provided; the accused cannot be compelled to produce evidence or witnesses; and the standard of proof must be ‘beyond a reasonable doubt,’” Hanson wrote.
Wexler found the argument persuasive, informing the parties in a letter that he concluded that the court lacked authority to proceed and that the proper procedure for a criminal contempt charge would be to refer it to the county prosecutor. It was unclear at press time whether Wexler would, in fact, refer the criminal contempt charges to the county attorney.
Eckland is also dismayed with how the litigation has unfolded. “It’s just too bad it had to get to this point in what otherwise would be a simple moldy house case.”
