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Comes now the Petitioner
SCOT T. CHRISMAN, and for the causes of action against the above-named
Defendant states to this Court as follows:
1. This complaint against Circuit Court Judge and attorney Wheeler Rosenbalm is brought pursuant to T.C.A. §23-3-201 et seq. (attached in Appendix B), and involves the continuing acts and omissions of Rosenbalm which constitute: (a) violations of the Tennessee Code of Professional Responsibility for attorneys, (b) violations of the Tennessee Code of Judicial Conduct for judges, (c) grounds for disbarment or discipline pursuant to T.C.A. § 23-3-201(1) et seq. 2. The initial circumstances which gave rise to Rosenbalm's unlawful conduct were the planning and construction of a new $5,000,000 sanctuary and daycare center for the Wallace Memorial Baptist Church in Knoxville, Tennessee (hereafter, the "Project"). 3. As Chairman of the Church's "Expansion Study Committee" (hereafter "Building Committee" or "Committee"), Rosenbalm and certain associates within the Church ("Rosenbalm & Co.") devised a plan whereby the Church members, the banks, the insurance companies, those engaged in actual construction in the field, and the public at large were led to believe that the Project was lawfully undertaken, and was being supervised by a competent and properly licensed "construction manager," Equitable Church Builders, Inc. of Nashville, Tennessee (hereafter "Equitable"). 4. The primary purposes of this plan were: (a) to save money by, among other things, utilizing the benefits of the Church's tax-exempt status, including exemptions from sales tax and certain payroll taxes; and (b) to aggrandize the members of Rosenbalm & Co. for their roles in creating the new church sanctuary and daycare center on a limited budget. 5. In reality, however, Rosenbalm & Co. knowingly caused the Church to engage in illegal activities by (a) causing the Church to act as its own general contractor for the Project (through the Church Building Committee) without the necessary licenses & expertise, and (b) hiring so-called "construction manager" Equitable, knowing that Equitable was likewise not lawfully qualified or licensed to undertake this multi-million dollar project. 6. In furtherance of this illegal plan, Rosenbalm & Co., Equitable, and their employees: (a) Deliberately misled the Church's members into believing their new sanctuary and daycare center were being lawfully constructed under the supervision of a properly qualified construction manager. (b) Made fraudulent misrepresentations to the banks which financed
the construction and to the Church's insurance company regarding the role
of Equitable.
(d) Hired an unlicensed and inadequately experienced "Construction Superintendent," Jim Kelley, to supervise day-to-day activities in the field, and to undertake responsibilities (such as participating in the measurement and layout of the building's foundations) which he was not qualified to handle. (e) Deliberately misled the Project's subcontractors and materials suppliers into believing Equitable was assuming all the supervisory responsibilities and legal obligations of a typical construction manager. 7. As a result of Rosenbalm's plan and actions the membership of the Church, local government, the banks, the insurers, the workers on the Project, and the public at large were all defrauded before the Project ever broke ground. 8. Moreover, there is substantial evidence that, as a result of this unlawful plan and the incompetence which it condoned, the Church's sanctuary and daycare center are structurally unsound. After construction commenced, it became apparent that there were major problems with both the plans and specifications for the Project, and the adequacy of the buildings' foundations, all of which created severe problems in getting the basic columns and beams to connect properly. Eventually it became known that neither the Building Committee nor Equitable had contracted for an on-site engineer to monitor construction activities in the field—a clear necessity for a project of this size and complexity. 9. However, rather than responding appropriately, Rosenbalm & Co. and Equitable chose either to deny the existence of the problems, or to blame them on others not responsible, in a scheme to cover up their own incompetence and wrongdoing. Worst of all, they chose to "fix" the most critical structural steel fitting problems by ordering cables and winches used to force steel beams and steel columns into position. This action violated the most basic principles of safe construction practices, and created stresses on the Sanctuary framework which it was never intended to bear. 10. In furtherance of a conspiracy to conceal both their wrongful
actions and the critical problems they created, Rosenbalm & Co., Equitable,
and their employees concealed material information from the Church members
and other interested parties, including the fact that the Project never
received a Final Inspection or a Certificate of Occupancy from the City
of Knoxville, as required by law. Accordingly, the sanctuary and daycare
center were, and still are, illegally occupied.
12. When the numerous and dangerous steel fitting problems arose, Rosenbalm & Co. and Equitable refused to hire a field engineer to determine the accuracy of the Project's foundations. In an effort to ensure the safety of the building, 68 Steel did so at its own expense. The report of 68 Steel's engineer clearly established that a faulty foundation layout (in no way the responsibility of 68 Steel) was the source of virtually all the steel fit-up and erection problems at the site. 13. Subsequently, Rosenbalm & Co. did hire another engineer
to survey the sanctuary's foundations. However, on receipt of his
report, they refused to provide a copy to 68 Steel. Instead Rosenbalm
& Co. & Equitable continued to deny responsibility. The evidence
shows that Committee Co-Chairmen Rosenbalm and Jensen, Equitable, and their
employees conspired in an effort to deplete 68 Steel's resources and turn
it into a convenient, defenseless target for all complaints regarding the
Project.
(a) In the early stages of construction, Jensen and Kelley asked 68 Steel to take over the steel erection work from another company (68 Steel had bid only on fabrication). They lied about why the previous erector left the job, and then (unknown to 68 Steel and others) paid that previous erector a substantial sum of money over and above what they themselves had determined his work to be worth. This payment was apparently intended to ensure the first erector's silence as to his real reasons for leaving the job. (b) When, in considering whether to take over the erection, 68 Steel inquired as to the need for a contractor's license. Rosenbalm & Co.'s agents assured them that a license was not necessary, because Equitable was the Project's "general contractor," and 68 Steel would be a "sub-contractor." However, three years after the fact, for the first time, Rosenbalm & Co. sought to avoid liability for their own wrongdoings by claiming that 68 Steel was actually an illicit "unlicensed contractor," rather than a subcontractor on the Project. (c) As noted above, Jensen and Kelley refused to disclose to 68 Steel the results of their own engineer's assessment of the foundation problems (performed soon after 68 Steel's). Not until almost three years later did Rosenbalm finally present to 68 Steel a copy of this survey. Moreover, the survey document presented to 68 Steel was fraudulently altered to conceal material information which confirmed the correctness of 68 Steel's original findings. (d) After 68 Steel was forced to leave the Project, Jensen and Kelley (with Rosenbalm's knowledge and approval) hired many of 68 Steel's employees as direct employees of the Church, and then unlawfully seized 68 Steel's steel fabrication shop and equipment. Rosenbalm and Co. knew that this was the only way to get the steel erection completed and still conceal their own misdeeds. 15. As a result of the continued misrepresentations and bad faith dealings of Rosenbalm & Co., 68 Steel filed suit against the Church, its Trustees, Equitable, Project Superintendent Jim Kelley, and Building Committee Co-Chairman Tom Jensen. (Rosenbalm was not originally named as a party because the seriousness and extent of his own wrongdoing was not evident until substantial discovery had been done.) The complaint alleged causes of action in both contract and tort, citing the multiple frauds perpetrated by the Building Committee, Equitable, and Kelley, negligence in supervision, interference with contract, civil conspiracy, and conversion of 68 Steel's property. This litigation is still pending. 16. In the course of the litigation, 68 Steel deposed Wheeler Rosenbalm. During the course of this deposition under oath, Rosenbalm lied on numerous occasions. Some of Rosenbalm's more literally incredible statements include: (a) That he was an experienced construction attorney, but that such skill and experience were irrelevant to his being chosen Chairman of the Church's Building Committee. (b) That he reviewed and revised the Project contracts before execution, but never acted as legal counsel for the Church. (c) That despite his construction expertise, and both the illegality and recklessness of contracting with an improperly licensed contractor for a project of such magnitude, he believed the subject of whether Equitable was appropriately licensed was of no concern to the Church. (d) That the Church was not the project "general contractor," despite volumes of documentary evidence to the contrary, the admissions of the Church's attorney Keaton, and the admissions of other Church agents, including Equitable, Superintendent Kelley, and their own engineer and architect. (e) That the plain language of contracts written and/or approved by him is irrelevant to interpreting the intent of the parties or the legal effect of the agreement. 17. Wheeler Rosenbalm has perpetrated multiple violations of the Codes of Professional Responsibility and Judicial Conduct, and actively participated in an unlawful conspiracy concerning the Project's construction, its aftermath, and related litigation. Rosenbalm's illicit activities began in the Project's planning stages (when he was still a practicing attorney), and in the context of a larger conspiracy continue to the present time. Rosenbalm's brazenly unlawful and unethical acts have compromised the honor and integrity of both the Bench and the Bar, and clearly warrant severe disciplinary action. 18. Wheeler Rosenbalm is a resident of Knox County, Tennessee, and is currently a Judge in the Knox County Circuit Court. Prior to being being elected Judge in 1990, Rosenbalm was a practicing attorney and a partner with Reggie Keaton in the firm of Frantz, McConnell & Seymour. Rosenbalm was Chairman of the WMBC Building Committee at the time of the planning for and letting of the contracts and sub-contracts for the multi-million dollar commercial construction project which is the subject of the 68 Steel litigation referenced above. 19. Tom Jensen is a resident of Knox County, Tennessee, and is a well-known developer of commercial properties as well as a former State legislator. At the time in 1990 that Rosenbalm ran for Judge, Tom Jensen became Co-Chairman of the Church's Building Committee with Rosenbalm. 20. Jim Kelley is believed to be a resident of Athens, Tennessee. Kelley was first hired by Equitable Church Builders, but prior to the actual beginning of the Church construction, Kelley was put on the Church's payroll. One of the reasons Kelley was employed directly by the Church was the benefit to the Church of reduced workmen's compensation expenses for Kelley. Kelley was the Church's "Construction superintendent," whose job was to coordinate and oversee the work of the various subcontractors on the Project. Kelley was supervised by, and reported directly to, Tom Jensen. Although playing a key supervisory role in the construction, Kelley was not licensed as a contractor, nor was he experienced in supervising a project of such size and complexity. 21. Reggie E. Keaton is a resident of Knox County, Tennessee, and is an attorney and partner with the law firm of Frantz, McConnell and Seymour, L.L.P. Mr. Keaton claims to represent multiple parties in the 68 Steel/WMBC litigation, including: (a) the Church (an unincorporated organization), (b) the Church's Trustees, and (c) Judge Wheeler Rosenbalm—a former senior partner of Mr. Keaton's law firm. However, despite repeated requests to demonstrate in writing that the Church membership as a whole (and not just Rosenbalm & Co.) had indeed hired Keaton to represent the Church, no evidence of his authority has ever been produced. 22. Scot T. Chrisman is a resident of Knox County, Tennessee. He is a one-third shareholder in, and Secretary-Treasurer of 68 Steel. Chrisman was also employed by that corporation and was directly involved in its daily operations until the corporation ceased doing active business. Since 68 Steel began discovery of the Church's and other defendants' records in connection with the lawsuit, Chrisman has spent considerable time analyzing, organizing and databasing more than 400 records and numerous deposition transcripts concerning this case, and thus has intimate knowledge of the contents and context thereof. 23. Richard H. Hunt is a resident of Knoxville, Tennessee.
Hunt is a one-third shareholder in, and President of 68 Steel, Inc.
Hunt was employed by that corporation and directly involved with the Church's
Project. Hunt was the individual solicited by the Building Committee's
agents to take over the Church's erection sub-contract work, and executed
the Sub-Contract Agreement for that work. Hunt is personally familiar
with the documents, specifications, and surveys referenced herein.
A. Development of the Wallace Memorial Baptist Church Project 24. In early 1986, certain members of the Wallace Memorial Baptist Church decided to explore the opportunity to build a new, larger sanctuary for its growing membership, and to convert the old sanctuary building into a daycare center open to the public (the "Project"). For this purpose, an "Expansion Study Committee" (later, the "Building Committee") was established. 25. The Building Committee was a sophisticated group, knowledgeable
about construction-related processes, procedures, contracts and terminology.
This Committee included, among others: (a) Wheeler Rosenbalm, a practicing
attorney (by his own admission) substantially experienced in construction
law; (b) Tom Jensen, a seasoned real estate developer, (c) two commercial
building contractors, Odra Archer and Dan Goodwin, and (d) an accountant,
Ed Piercy. The Building Committee members acted as de facto trustees
of the Church with respect to the Project, and owed a fiduciary duty to
the Church's members to carry out their responsibilities lawfully, ethically,
and competently.
27. Eventually, the Committee decided to proceed with the Project,
and began planning the methods, manner and parties by which the Project
would be designed, bid, contracted, supervised and controlled through to
completion.
29. As part of the preliminary planning, Rosenbalm and Jensen evaluated the church-building experience of Equitable Church Builders, Inc. of Nashville ("Equitable"), including reviews of Equitable's financial statements. They also reviewed and were familiar with Equitable's customary methods and personnel arrangements for building large Church projects. B. The Overt vs. Covert Roles of the Church, the Building Committee and Equitable 30. Reflecting the results of a feasibility study and prior negotiations, Equitable sent to the Building Committee a "Proposal Letter" providing that the Church itself would be the Project's "General Contractor," and Equitable would act as "Construction Manager and Agent" for the Church. The proposed arrangement provided that the Church would supervise and direct the Project through (a) their Building Committee, (b) their "agent" Equitable, and (c) an on-site "Construction Superintendent" recommended by Equitable, but approved of, and directly employed by, the Church. 31. The gains and advantages acquired by the Church through acting as its own "General Contractor" for the Project (set forth in part in the "Proposal Letter" referred to above) included among other things using its tax-exempt status to: (a) avoid thousands of dollars of sales tax on construction materials, and (b) avoid certain payroll taxes on workers employed directly by the Church (including the "Construction Superintendent" Jim Kelley). 32. By size and scope the Project came under the applicable building codes as "commercial construction," comprising a Sanctuary code-classified as a "Public Auditorium with Working Stage," and also a contiguous building intended to be licensed as a public daycare center. 33. Tennessee statutes require every person undertaking the construction of a commercial building for "gain of any kind" to have a contractor's license unless expressly exempted. While the statute offers a minor exemption for "owners building on their own property" for "private use," this exemption is patently inapplicable to construction of buildings open to the public. 34. Because of the public occupancy, commercial nature, and square footage of the Project, the Church was not exempt from complying with the contractors' licensing law. Thus the participation of a person or entity properly licensed to supervise the entire construction project was a specific statutory requirement for the lawful construction of the Church's new Sanctuary and daycare center. 35. However, Equitable's license as a contractor at the time was limited to projects of no more than $1,000,000 total value. The Project was estimated to cost in excess of $5,000,000. Therefore, Equitable could not lawfully act as either the general contractor or the construction manager for the Church's Project. Any minimally competent construction law attorney would have checked Equitable's license and been aware of this fact. 36. Deliberately disregarding the illegalities involved, Rosenbalm planned and portrayed to the Church members that the Church itself would act as its own General Contractor for the Project and that this would be accomplished through supervision and direction of the entire Project by the Building Committee acting through their agent and construction manager, Equitable. The members were informed that the Church would direct all work. It was also agreed that the Church would provide and employ the construction superintendent (Jim Kelley), and the Church would provide Kelley's construction office and phone. 37. Rosenbalm & Co. led the Building Committee, the Church's Pastors, and the members of the Church to believe that the foregoing arrangements were proper and lawful. The Church's records show that the members were informed of the estimated $5,000,000 cost of the Project; however they give no indication that these same members were ever informed (a) that Equitable's contractor's license had a $1,000,000 project limit, making Equitable unqualified to manage and supervise the entire Project, or (b) that the Church itself could not lawfully act as its own general contractor without having on staff a properly licensed person to provide the supervision and direction of the whole Project. C. Development of the Project Documents—the Contract with Equitable 38. Despite the fact that neither the Church nor Equitable was legally qualified to supervise construction of buildings of this type and magnitude, Rosenbalm executed a written contract with Equitable to act as the Church's "Construction Manager" for the Project, and its "Agent" in connection therewith, for a fee of $500,000. 39. Church documents show that Rosenbalm executed this contract with Equitable approximately one year prior to the time he was authorized to do so by vote of the Church membership. 40. Under §62-6-120 of the Tennessee contractors' licensing statute, entering into an agreement for construction with a contractor not properly licensed is a criminal offense. Likewise, acting as as a General Contractor when not properly licensed is a criminal offense. Therefore Rosenbalm knowingly and willfully subjected the Church membership, to whom he owed a strong fiduciary duty, to criminal liability. D. Project Documents - the Plans and Specifications 41. Rosenbalm attended virtually all of the planning meetings concerning the Project, including numerous meetings with Equitable and Equitable's architects and engineers. These architects and engineers prepared the Plans and Specifications for the Project, which Rosenbalm and other Committee members reviewed and approved. 42. The cover of the Project's Specifications Document listed Equitable Church Builders as the "Construction Manager." 43. Under "Owner's Status," the Specifications Document stated that the "Owner" (ie., the Church) would provide the construction superintendent (ie., Jim Kelley), as well as the construction office and telephone. 44. The Plans and Specifications for the Project required the participation of about 21 ordinary subcontractors and three "Specialty Subs" (as defined below), as well as about 22 different materials suppliers. The "General Conditions & Requirements" of the Specifications Document delivered to each subcontractor and materials supplier for the Project stated: "These General Conditions shall constitute a basic part of each Subcontractor's work." 45. The Tennessee contractors' licensing statute in effect at the time expressly exempted most "subcontractors" from the requirement to be tested and licensed. Rather, testing and licensure requirements applied only to (a) parties responsible for undertaking or supervising an entire project, not just parts of it (ie., nonexempt owners, general contractors, and construction managers), and (b) those few subcontractors providing over $50,000 of either electrical, plumbing, or HVAC work (herein referred to as "Specialty Subs"), for which specialty licenses are required. 46. The statute also expressly stated that, if a general contractor's license was a legal requirement for work on any aspect of a construction project, then the project Plans and Specifications had to contain: (a) a "Notice of Requirement for License," and (b) a copy of the applicable section of the Contractors' Licensing Statute (at least by reference). Failure to provide this notice in the Specifications was a criminal offense. 47. However, neither the Plans and Specifications for the Church's Project, nor any other contract or document related to the Project, contained any notice that any of these subcontractors or materials suppliers was required to be licensed as a contractor. 48. Thus, the Project Plans and Specifications were intended to convey the understanding that: (a) Equitable was competent to, and would, supervise the entire Project as a typical Construction Manager, (b) Kelley was a direct employee of the Church, and (c) all independent parties contracting for portions of the work were either subcontractors or material suppliers, both of whom (except for Specialty Subs) were exempt from licensure under the applicable Tennessee statutes. E. Employment of the "Construction Superintendent" and his Subordinates 49. Superintendent Kelley was first employed by Equitable, but about December of 1989 Kelley was placed on the Church payroll. Equitable was then reimbursed for Kelley's prior salary costs. The Church filed W-2 forms for Kelley as an employee of the Church during his term as superintendent. 50. The Church also directly employed two others for construction
work: (a) Tim Carter, designated as "carpenter foreman," and (b) Mark Schlicker,
who assisted both Kelley and Carter. Kelley directly supervised the
work of these men, as well as the various subcontractors on site.
F. Project Documents — the Building Permits 51. As noted previously, the Project was classified under the applicable building codes as "commercial construction," comprising a large Sanctuary code-classified as a "Public Auditorium with Working Stage," and also a contiguous renovated building intended to be licensed as a public daycare center. 52. Under statutory law, the Building Permit for a project of this kind could be lawfully issued only to (a) an exempt owner building on its own property for private use, or (b) a properly licensed contractor. However, as described above: (a) the Church was neither exempt nor licensed, (b) the Church's construction superintendent was not licensed, and (c) Equitable's license was insufficient to allow it to obtain the building permit for this Project. 53. Nevertheless, due to the influence of certain member(s) of the Building Committee, Knoxville Chief Building Official Charles Cummins expedited the customary plans review process, and Tom Jensen "walked the plans through" in a single day for their final approval. Cummins knew that the Church itself was going to act as its own "general contractor," yet Cummins' office issued the Church the Sanctuary Building Permit in clear violation of statutory law. 54. On the Sanctuary Building Permit, the "General Contractor" is shown to be the "Owner," that is, Wallace Memorial Baptist Church. It is signed on behalf of the Church by Carolyn Jensen (wife of Tom Jensen). However, Mrs. Jensen was not a licensed contractor (nor even a member of the Building Committee), and neither the Building Committee minutes nor other Church records indicate that she was ever properly authorized to execute or accept this document for the Church. 55. Chief Building Official Cummins also permitted the Project to be unlawfully "split" for permitting purposes; that is, there were two permits issued at different times for this project, one for the Sanctuary and one for the daycare center, with estimated costs split between them. On the second Permit for the daycare center, the "General Contractor" is shown to be Equitable. Equitable was able to obtain the second permit because the $400,000+ estimated cost of the old sanctuary renovation part of the overall Project was within Equitable's contractor license limits. G. Project Documents - the Bid Solicitations 56. In the body of the agreement between the Church and Equitable, approved and executed by Rosenbalm, Equitable Church Builders, Inc. agreed "to bear the expense of taking all sub-contract bids and material prices and preparing cost estimates . . . and "to furnish the necessary periodic job inspections and general supervision on the job." 57. In the construction industry it is common knowledge that "taking sub-contract bids" and "furnishing the necessary job inspections and general supervision" are the usual activities, duties and responsibilities of a project's general contractor or construction manager. 58. In the construction industry, the term "sub-contract bids" means bids submitted by subcontractors or materials suppliers for only portions of the project work. 59. Bids were solicited from subcontractors and materials suppliers by the customary method of listing the Project in written notices (the "Green Sheets") published by the Knoxville Builders Exchange. In five separate listings for the Project at the Builders Exchange over a period of six weeks, Equitable Church Builders was listed as "General Contractor" (not "Construction Manager"). For example, the October 31 listing stated: "Sub-bids and Material Bids will be received. Oct. 5, 2 pm by the General Contractor, Equitable Church Builders..." 60. Like the Plans and Specifications, the bid solicitations were also obviously intended to convey the understanding that (a) Equitable was competent to, and would, supervise the entire Project, and (b) all independent parties contracting for portions of the work were either subcontractors or material suppliers, exempt (excepting for Specialty Subs) from licensure under Tennessee law. G. Development of the Project Documents—Status of the Workers on the Project 61. As Chairman of the Building Committee, attorney Rosenbalm reviewed, edited, and approved the wording and final form of the Project's proposals, contracts, subcontracts, and insurance documents. 62. As noted previously, Equitable's "proposal letter" and the Church's contract with Equitable executed by Rosenbalm, consistently used the word "subcontractor" to refer to parties who were to do various portions of the work on the Project. In addition, Equitable's contract contained a specially drafted "Addendum." Paragraph 2 of this Addendum set forth the parties' agreed-upon meaning of the terms "subcontract," and "subcontractor" as follows: "2. The term "subcontracts" includes agreements made by Owner directly with third parties; and the term "subcontractor" includes third parties with whom Owner directly contracts." 63. During a specially called business meeting of the Church members on October 29, 1989, Rosenbalm made a motion that the Church body authorize "the Church building committee and Equitable Builders [sic] to enter into contracts with sub-contractors to supply materials and labor not to exceed the figure shown [on attached bid quotations]" This motion was approved by the congregation. 64. Prior to this meeting Rosenbalm and Jensen reviewed and approved the specific contract forms, entitled "Sub-Contracts," to be used with the Project's numerous subcontractors. These forms, as well as all of the other Project Documents, consistently use the word "subcontractor" to refer to the various workers and materials suppliers for the Project. 65. Rosenbalm and the Building Committee were not authorized to enter into materials and labor contracts with parties other than "subcontractors." Nor were they authorized to enter into these subcontracts without the participation of their "construction manager" and agent Equitable Church Builders. 66. As noted previously, the Tennessee contractors' licensing statute in effect at the time expressly exempted most "subcontractors" (except Specialty Subs) from the requirement to be tested and licensed. This exemption reflected the legislative intent that (other than Specialty Subs) only those responsible for supervising an entire project were required to be tested and licensed, and thus deemed competent to supervise those parties who provided only specific portions of the work. 67. Prior to 1980, the contractor's licensing statute provided that anyone in contractual privity with an owner did not qualify as a "subcontractor." However, in 1980, the legislature amended the statute to specifically remove this provision. The statute was also later amended to expressly include "construction managers" among those required to be licensed. These changes reflected the legislature's recognition that the traditional linear construction relationship (where the "owner" contracted with a "general contractor" who then contracted separately with each "subcontractor") was often being replaced with a more modern triangular relationship (where the "owner" contracted with a "construction manager" entity and also directly with each "subcontractor"). 68. As noted previously, not a single one of the Project's contracts, plans and specifications, bid solicitations, or records of the Building Committee and Church congregational meetings contains any suggestions that any of the parties consistently referred to throughout as "subcontractors" would be expected to have a contractor's license, either by virtue of their contracting directly with the "Owner" (the Church), or for any other reason. 69. And in fact, not a single one of the workers and materials suppliers contracted for the Project (other than Specialty Subs) held a contractor's license. 70. If contractual privity with the "Owner" Church required any one of these "subcontractors" to have a contractor's license, then approximately 15 separate entities contracted by the Church would have had to have such a license. However: (a) If this had been the case, the Church would have been largely unable to find the proper parties to do the work. The people who typically do portions of the work as subcontractors would not take the time and expense to get a general contractor's license just because the Church chose to enter into contracts directly with them. (b) Furthermore, as noted previously, Tennessee law made entering into an agreement with an unlicensed contractor a criminal offense. Accordingly, if all these subcontractors were supposed to be licensed, then Rosenbalm and Jensen caused the Church to commit a criminal offense with the execution of each one of these contracts. I. Project Documents - the Initial Subcontracts and Purchase Orders 71. One of the many parties who received the "Green Sheets" of bid solicitations was Richard Hunt, President of 68 Steel, which submitted a bid to perform the steel fabrication for the Project (ie., to act as a materials supplier). Tom Jensen and Kelley conducted a detailed investigation of the company and its principals. Jensen, Rosenbalm and Kelley all knew that 68 Steel, having always performed only as a subcontractor, was not licensed as a contractor under TCA 62-6-102. 72. 68 Steel's bid for fabrication was accepted, and the agreement
was incorporated in a generic form designated "Purchase Order," dated Nov.
14, 1989, and signed by Jensen (for the Church) and David Dierks, President
of Equitable.
74. None of these "Sub-Contract Agreement" forms for the Project contain any notice or requirement that the "Sub-Contractor" named therein had to be licensed. 75. One of these "Sub-Contracts"—the agreement providing for the erection of steel in the field —was entered into by the Church and Equitable with Willis & Sons. Willis & Sons had been in the business of providing steel erection services in Knoxville as a subcontractor for many years. And like 68 Steel, Willis & Sons erectors was not a licensed general contractor. J. The Fraudulent Erection Subcontract with 68 Steel and Subsequent Illegal Activities 76. On or about April 25, 1990, 68 Steel, which had been fabricating steel for the Project to be erected by others on-site, was approached by Construction Superintendent Jim Kelley. On behalf of the Church, and with the approval of Rosenbalm and Jensen, Kelley solicited 68 Steel to take over the erection work on the Project. Kelley stated that the current erection subcontractor, Willis & Sons, had to leave the job because of "family problems." 77. When Richard Hunt of 68 Steel inquired as to the possible need for a contractor's license to do the erection work, Kelley stated that it was unnecessary because "Equitable was the project General Contractor." 68 Steel agreed to take over the erection work on the representation that it was being hired as a subcontractor under Equitable's supervision, and that the proposed erection activities would be those of a "subcontractor" exempt from any contractors' licensing requirements. 78. The next day, 68 Steel's workmen began certain steel erection work on the Project site. About two weeks later, Jensen and Kelley presented to 68 Steel a written agreement for the remainder of the steel erection work. This document is titled "Sub-Contract Agreement," and was in exactly the same form as the numerous other subcontractors' contracts approved by Rosenbalm, as described above. It was executed by Tom Jensen on behalf of the "Owner" Wallace Memorial Church, by Richard Hunt on behalf of the "Sub-Contractor" 68 Steel, by David Dierks for Equitable Church Builders as "Owner's Agent," and by Jim Kelley as "Construction Superintendent." 79. Several weeks into the work, and after making a number of angular turns erecting the steel frame, 68 Steel began experiencing significant problems getting the steel pieces to "fit up" properly. Kelley ordered parts to be cut, bolt-holes enlarged, and similar "bandaid" repairs to force the beams or column pieces to connect. 80. By mid-July, the structural problems escalated, and one of the major beams in the building missed its proper connections by about three inches. The beam was measured by agents of 68 Steel, and of the Church, and found to be correctly manufactured. 68 Steel began to suspect that the source of the fitting-up problems was (a) defective plans and specifications, and/or (b) errors in the actual layout of the building's foundations. 81. 68 Steel requested that the job be stopped, but this request was refused by Jensen and Kelley. Kelley had concrete poured over column bases, knowing that the columns were not properly positioned, in an effort to conceal the source of the foundation defects. Kelley also ordered continuing work on the roof structure, knowing that the building was becoming increasingly stressed, and welds were breaking. 82. 68 Steel then stopped its work on the roof, and asked to address the Church's engineers, and the Church's building committee. Both requests were refused by Tom Jensen. Only at this time did 68 Steel learn that the Project's so-called "engineers" were hired only to do initial plans and drawings, and had no obligation or instructions to do any site evaluations or supervision of the construction in the field. 83. Rosenbalm and Jensen knew or should have known that the safe completion of project of this size and complexity unquestionably required the ongoing supervision of a structural engineer in the field. Yet not only did they not provide for such supervision at the beginning, they refused to provide it even when the course of construction clearly demonstrated that major obstacles to safe completion of the building had arisen, and were getting worse, daily. 84. The Building Committee refused to survey the building's foundations locations, so 68 Steel ordered its own survey of the building. When 68 Steel's structural engineer came to the site, one of Kelley's workmen removed the Project's main survey locating pin in a clear attempt to interfere with proper evaluation of the building's layout. Evidently Kelley was not knowledgeable enough to know that with advanced technology, the survey pin was not necessary to performing a proper survey. 85. Regardless of the attempts to interfere, 68 Steel's engineer found serious misplacement of most of the building's column locations at ground level— which clearly accounted for the increasing and dangerous steel fitting-up problems. 86. Subsequent to 68 Steel's findings the Building Committee hired engineer Bob Campbell to do a similar "laser" survey of the building's foundation placements for the Church. (Campbell was an associate of Jensen who depended on Jensen's largesse for about 40% of his business.) Several years later 68 Steel discovered that Campbell found the same serious foundation misplacements that 68 Steel's engineer found, but at the time Jensen refused to hand over engineer Campbell's findings. Jensen denied that there was a significant problem with the foundations, and both Jensen and Kelley relayed false information concerning the engineering assessments to the Church's building committee. 87. Rosenbalm & Co. refused to negotiate with 68 Steel to resolve the problems or properly pay 68 Steel for the substantial work required to correct mistakes not of their making. Knowing the building was unsafe and unsound, Rosenbalm & Co., Equitable, and Kelley refused to stop the Project or have it properly analyzed. 68 Steel then hired a lawyer to represent them to resolve the matter, or file suit against the Church. 88. Representing himself to be counsel for the Church, Rosenbalm met with 68 Steel's lawyers. Rick Hunt, and Scot Chrisman on several occasions. Rosenbalm was given copies of 68 Steel's engineer's findings in both "blueprint" and narrative form. By the time of these meetings Rosenbalm also had knowledge that the Church's engineer Campbell had found essentially the same material problems with the building's foundation layout as had 68 Steel. 89. Once in possession of reliable information from both 68 Steel
and their own people demonstrating the severe structural problems in the
new sanctuary, Rosenbalm and Jensen were faced with a serious decision.
To repair the structural defects adequately and safely would require substantial
overruns in both time and money which had to be approved by the members
of the Church. However, seeking such approval raised serious possibilities
that the Church members and the public at large would discover (a) the
illegalities in the initial Project implementation, (b) the Building Committee,
Equitable, and Kelley's incompetence and lack of proper qualifications,
and (c) the structural damage and physical risks incurred by Rosenbalm
& Co.'s original decision to execute the Project "on the cheap."
91. In furtherance of this conspiracy, Rosenbalm and Jensen refused to negotiate a proper settlement with 68 Steel, or, far more importantly, to stop the work and undertake all required assessments and repairs to ensure the safety and physical integrity of the buildings. On the contrary, Jensen and Kelley demanded that 68 Steel accelerate the work, or be fired. Jensen and Kelley continued to falsely claim to church members and other trades on the site that the problems being incurred were due to "faulty" fabrication or "faulty" erection procedures by 68 Steel. 92. Around September 6, 68 Steel left the Project entirely, due to the negligence and wrongdoing of Rosenbalm, Jensen, Equitable, Kelley, and others, which acts are the subject of the civil suit mentioned previously. 93. Immediately thereafter, Tom Jensen and Jim Kelley hired a
number of 68 Steel's men, including foreman Vince Harper, and continued
the formerly sub-contracted steel fabrication and erection work with these
men as direct employees of the Church. (At this point the structural
problems were so severe and known in the local trade that Kelley could
not find another reputable steel erector to complete the erection.)
Then Jensen and Kelley wrongfully took possession of 68 Steel's fabrication
shop and equipment, and later removed much of 68 Steel's tools and equipment
to the Church site. These actions were taken without the consent
of 68 Steel.
95. The wrongful acts of Rosenbalm & Co. include, in addition to the breach of their contract, fraudulently inducing 68 Steel to enter into the Erection Sub-Contract, numerous frauds and misrepresentations in the course of their work, theft of 68 Steel's property, defamation, and deliberate interference with 68 Steel's business relations with third parties. K. The Conspiracy to Conceal Evidence and to Silence 68 Steel 96. During the next two and a half years, the principals of 68 Steel made repeated efforts (without success) to right the wrongs that had been done them by Jensen, Rosenbalm, Kelley, and Equitable. These efforts included contacting the Church Pastor, various Church members, and Charles Cummins, Knoxville's Chief Building Official. 97. Finally, on or about April 5, 1993, at the request of 68 Steel, Scot Chrisman and company president Richard Hunt met with Rosenbalm, Jensen, Kelley, the project architect Harry Frahn and several other members of the Church's Building Committee, including contractors Odra Archer, and Dan Goodwin. This meeting was held at the Church's conference room, and was chaired by Rosenbalm and Jensen. 98. The purpose of this meeting was to discuss (a) a negotiated settlement between the Church and 68 Steel, and (b) Tom Jensen's promise to turn over to 68 Steel the "Laser Survey" of the Sanctuary structure done by the Church's engineer Bob Campbell in August of 1990. 68 Steel had repeatedly requested copies of this document in order to compare it with its own engineer's laser survey, in an effort to further confirm the true cause of the major steel erection problems. 99. During this meeting, 68 Steel again requested a copy of the original Laser Survey done by Campbell. Rosenbalm and Jensen authorized engineer Campbell to give Chrisman and Hunt what was alleged to be a genuine copy of this Survey. 100. However, unknown to Chrisman and Hunt (but known to Rosenbalm, Jensen, and others), this particular copy had been materially altered from the original Survey drawing—an essential section of the original drawing had been deliberately erased. 101. It is now known that the deliberately erased section of the Church's survey clearly shows that most of the Building's main support columns are indeed significantly displaced from their proper position—the most critical factor in proving that 68 Steel's work was not to blame for the steel erection problems. 102. This fraudulently altered copy of Campbell's Survey was handed to 68 Steel's representatives —as well as shown to those Building Committee members not party to the conspiracy to conceal—for the purpose of intentionally misleading them as to the real cause of the steelwork problems on the Project. 103. Engineer Campbell has since admitted under oath that the original sepia drawing of his survey work had indeed been erased. However, upon intense questioning, Campbell (who is a licensed surveying engineer) "could not remember" what the "erased" part of the drawing revealed, or explain how the erasure occurred. 104. During the meeting referred to above, Wheeler Rosenbalm raised, for the very first time in almost three years of negotiations, the claim that 68 Steel had no claim to damages from the Church because "68 Steel was not a licensed contractor" under T.C.A. §62-6-601 et seq., and was thus subject to statutory penalties. The sole basis for Rosenbalm's claim was the fact that 68 Steel (like all of the other subcontractors on the Project) had contracted directly with the "Owner," the Church. 105. Beyond the fact of the gross impropriety of a seated Judge making legal arguments and opinions for his organization, Rosenbalm's claim was made in complete disregard of the facts that: (a) "subcontractors" (except "Specialty Subs") are specifically exempt from the licensing requirements of the applicable Tennessee statute; (b) contractual privity with an "owner" is by itself insufficient to establish that a party is a "contractor" rather than a "subcontractor"; (c) there are numerous documents drafted by the Church and Equitable (and either signed or approved by Rosenbalm himself) to the effect that 68 Steel was, and was intended to be, a "subcontractor"—and the Church intended to act, and did act, as the "General Contractor"; and (d) the Church, Kelley, and Equitable were all "contracting" as defined by statute, and it was their own construction activity—not 68 Steel's—that was patently unlawful. 106. This fraudulent defense first offered up by Rosenbalm had no basis in fact or law. It was concocted by Wheeler Rosenbalm as a smokescreen in furtherance of the conspiracy to conceal that the Church's Project had been illegally conceived and improperly carried out, at Rosenbalm's own instigation, since the very beginning. 107. Finding during this April meeting a complete lack of good faith on the part of Rosenbalm and Jensen, and continued efforts by them to keep other Building Committee and/or church members in the dark, 68 Steel filed suit against the Church, Equitable, and Kelley in the Chancery Court in Knoxville in June 1993. 3. Use of the Fraudulent "Unlicensed Contractor" Defense in Court — November, 1993 108. The contrived and fraudulent defense that 68 Steel's recovery in the lawsuit was statutorily limited due to its being an "unlicensed contractor" was presented by Rosenbalm's former law partner Reggie Keaton in a summary judgment motion considered by the Knox County Chancery Court in November of 1993. 109. This spurious claim was immediately quashed by presiding
Judge Frederick McDonald, who stated, in essence: (a) the Church,
not 68 Steel, wrote the contract, (b) the Church chose to designate the
agreement a "Subcontract" and 68 Steel a "Subcontractor," and (c) regardless
of the contractual privity between the Church and its subcontractors, there
was a construction manager—Equitable Church Builders—"in between."
111. With the specific intention of gaining a favorable ruling through fraudulent means, Rosenbalm's former law partner Keaton again represented to the Court in additional summary judgment hearings beginning October 6, 1995 that the Church did not act as, or have the intention to be, the "General Contractor" for this Project. Keaton made the factually false representation to the Court that the Church was merely an "innocent Owner," deserving of the "protection" of the contractor licensing statutes. 112. Judge McDonald rejected these arguments, pointing out in
numerous ways how the evidence showed that the Church acted not only as
"Owner" but also as the "General Contractor" in this Project
114. However, for reasons known only to himself and Rosenbalm & Co., later in the same hearing Judge McDonald completely reversed himself, ruling as a matter of law that the contractually defined subcontractor 68 Steel was actually an "unlicensed contractor"—solely by reason of having contracted directly with the "owner"—the same "owner/contractor" that the Judge had just found to be the "general contractor" for the Project. 115. With equally questionable purposes, upon submitted motions and direct verbal request by 68 Steel's attorneys, Judge McDonald then refused to make a specific written ruling as to whether or not the Church was acting as the Contractor for the Project, or whether or not the Church's activities required the Church itself to be licensed. 116. Since "subcontracting" is not defined in the statute, but "contracting" is, then by pure logic it is not possible to rule on the question of whether or not 68 Steel was factually "subcontracting" on the Project, until first determining whether the Church was indeed factually "contracting" on the Project (which they incontrovertibly were, as Judge McDonald so eloquently stated). 117. Subsequent to this inexplicable turn-about by Judge McDonald, 68 Steel immediately called for a deposition of Wheeler Rosenbalm, the party primarily responsible for the Project's planning and the specific wording of the Project's contract documents as described in detail above. 118. Rosenbalm's deposition was taken on November 3, 1995, at the law office of Reggie Keaton, alleged counsel for the Church and former partner of Rosenbalm. Rosenbalm was first duly sworn, and an official transcript of the proceedings was made. 119. Under oath in the deposition, Rosenbalm knowingly, and with intent to deceive: (a) made numerous false statements of material fact concerning this Project and his personal role in it, (b) made numerous false statements of material fact concerning his personal knowledge and/or beliefs, and (c) made inconsistent statements of material fact under oath, any two of which cannot both be true. At the time of making these false representations of fact (enumerated in specific counts below), Rosenbalm did not believe such representations to be true. L. Rosenbalm's Perjury in Furtherance of the Conspiracy 120. Rosenbalm lied repeatedly in his deposition, and had substantial motives to do so. Most important among these were his need to continue to conceal from the Church and the public at large (a) his own unlawful activities as well as those of Jensen, Equitable, Kelley, and other agents of the Church, and (b) the serious structural infirmities of the Church buildings. 121. For example, if Rosenbalm were found not to have represented the Church as legal counsel or construction expert during the Project, he might reduce his potentially enormous liability to the Church for, at best, extraordinary malpractice and, at worst, deliberate fraud. 122. If the Church were found not to be unlawfully "contracting" as general contractor for the Project, then Rosenbalm might relieve himself of responsibility for causing the Church to act in contravention of the Contractors' Licensing Statutes as an unlicensed, non-exempt owner/contractor. 123. If Superintendent Jim Kelley were found not to be an employee of the Church, the Church (and accordingly Rosenbalm & Co.) might then avoid vicarious liability for Kelley's wrongful acts and/or omissions. 124. If 68 Steel were found to be an unlawfully unlicensed contractor (and not an exempt subcontractor), then its damages claims might be substantially reduced, perhaps making further pursuit of the litigation against the Church economically unfeasible. 125. Similarly, to the extent Rosenbalm could shift the blame to 68 Steel, Rosenbalm & Co. could continue to convince the Church members that the lawsuit was just an unjustified "nuisance suit" by disgruntled workers, thereby protecting the members of Rosenbalm & Co. from further scrutiny. 126. Furthermore, to the extent Rosenbalm could characterize the nature of the dispute with 68 Steel as one over money, rather than the shoddy construction, the better chance he had of continuing to conceal the sanctuary's structural deficiencies from the members of the Church and the public. 127. Specific documents referred to herein (such as the Church's contracts and sub-contract agreements) may be found in "the Book" of key documents submitted by 68 Steel in the Chancery Court litigation. This "Book" of documents was sent to attorneys Keaton (for the Church), Clifford Shirley (for Equitable), Howard Vogel (for Jensen), and Michael Kelley (for Jim Kelley) by 68 Steel. This "Book" of documents was intended as an aid for all parties as a quick reference to the principal material documents gleaned from over 400 separate documents provided by the Church, Equitable and others in discovery. 128. Rosenbalm and attorney Reggie Keaton had complete access
to these documents and had ample opportunity to review these documents'
contents and meaning. Specific note is made herein of the fact that
almost all of the documentation which is material to this and 68 Steel's
complaint came directly from records and files of the Church or of Equitable,
and not from the records of 68 Steel.
129. Concerning the Church's Reliance on Him: Rosenbalm denied that the Church and/or the Building Committee relied on his expertise as an attorney, or his knowledge in construction, especially in regard to the contracts. However: (a) Rosenbalm admitted reviewing, modifying drafts of, and signing a number of the contracts used by Equitable and the Church. (b) The Project Architect's notes concerning meetings with Rosenbalm show that Rosenbalm reviewed proposals for, and made specific recommendations concerning, the Church's insurance coverage for the Project. (c) Rosenbalm was a major participant in investigating, hiring, and negotiating the contracts with Equitable. (d) Building Committee meeting minutes confirm Rosenbalm's position as counsel to the Church. 130. Concerning His Legal Representation of the Church: Rosenbalm denied that he ever acted as legal counsel for the Church, saying that the Church "generally didn't have any need for counsel." However: (a) Minutes of a Church Building Committee meeting held in the fall of 1990 state: "Wheeler Rosenbalm will no longer be able to act as legal counsel because of judgeship. Mike Winchester, who is a church member, will serve as legal counsel." (b) Rosenbalm represented himself as counsel to the Church in several meetings with 68 Steel and their counsel from 1990 through 1993. 131. Regarding the Choice of His Former Partner as Alleged Counsel for the Church: Rosenbalm stated that he did not participate in the decision, or have personal knowledge of who made or participated in the decision, to hire the Church's alleged counsel Reggie Keaton. However, Reggie Keaton is Rosenbalm's former law partner. It is not credible that Rosenbalm had no personal knowledge of who made the decision to hire his own former law firm to represent not only the Church and its Trustees, but also Rosenbalm himself. 132. Concerning No "Legal Opinions" in His Testimony: Rosenbalm stated that his testimony contained no legal opinions. However: (a) Rosenbalm testified that the Church bore no legal responsibility as a "contractor" subject to Tennessee's licensing statutes. (b) Rosenbalm testified that 68 Steel was an unlawfully licensed "contractor" and not an exempt "subcontractor," based solely on legal, and not factual, arguments. (c) Rosenbalm testified that superintendent Jim Kelley was not an employee of the Church, again based solely on legal, and not factual, arguments. 2. Perjury Regarding the Church as General Contractor, the Role of Equitable, and the Project Building Permits 133. Concerning the Church's Status as "Contractor" for the Project: Rosenbalm testified that the Church was not the "Contractor" for the Project and (quote) "was not going to engage in construction work." However, among voluminous evidence to the contrary: (a) Equitable's standard business practice was (and today still is) to have the Churches for whom it supervised projects act as their own Contractors; (b) The Church's being the Contractor and possible problems created thereby were discussed in planning meetings with Rosenbalm and Jensen; (c) The Project Architect has admitted under oath that the Church acted as its own contractor; (d) The Project engineers have admitted under oath that the Church was the Contractor; (e) Members of the Church (including a contractor, Fred Lay) were informed that the Church was going to act as its own contractor; (f) Superintendent Jim Kelley admitted under oath that the Church was the Contractor; (g) The sanctuary Building Permit listed the Church as the Contractor; (h) The Chief Building Official himself (whose office issues the permits) has written an official letter stating that the Church acted as its own contractor, and (i) The Church's (and Rosenbalm's) alleged attorney Keaton admitted to Judge McDonald in court on Oct. 10, 1995 that the Church was its own Contractor. 134. Concerning Equitable's Lack of an Adequate License: Rosenbalm stated that he did not know if Construction Manager Equitable was properly licensed or not — dismissing the issue with the shockingly cavalier comment, "That's their problem, not mine." However: (a) Rosenbalm also stated that he had considerable construction expertise, which makes commencing a $5,000,000 project without checking the qualifications of the construction manager, at best, an act of the grossest disregard for the welfare of those to whom he owed the highest duty. (b) Rosenbalm reviewed Equitable's financial statements before signing their contract, and thus knew that Equitable's net worth was insufficient to acquire a license level to undertake the Church's $5,000,000 plus project. (c) Rosenbalm also stated he "knew the law," which by such law makes entering into a contract with an unlicensed or improperly licensed contractor a criminal offense. (d) Rosenbalm knew prior to his deposition that Equitable's inadequate license status had been clearly shown in documentation before the Court. 135. Concerning the Fraudulently Obtained Building Permits: The documents required to obtain the Project's primary Building Permit were signed on behalf of the church as "Owner" and "Contractor" by Carolyn Jensen (wife of Tom Jensen, Rosenbalm's subsequent Co-Chairman), who was not only not (as the law required) a contractor, but not even a member of the Building Committee. Rosenbalm testified that Ms. Jensen was in fact authorized by the Church to sign for these documents. However: (a) Rosenbalm had no recollection that the Building Committee took any specific action to authorize Ms. Jensen to do so. (b) No party has produced any documentary evidence of such authorization, nor any evidence that Carolyn Jensen was in any other way officially connected with the Project. (c) Rosenbalm stated that he "knew the law" regarding construction; and pursuant to Tennessee statutes it was a criminal offense to grant a commercial building permit to any party not properly licensed as a contractor. 136. Concerning the Church's Designation as "Contractor" in the Primary Building Permit. Rosenbalm testified that he "did not know" why the Church was listed as the contractor on the original Building Permit, or why Equitable was not shown as the party obtaining the permit. However: (a) Rosenbalm was a participant in the initial planning meetings and presentations to the Church in which it was stated on numerous occasions and in multiple documents that the Church would act as its own "Contractor." (b) Prior to Rosenbalm's deposition, the Church's alleged counsel Reggie Keaton had already admitted in open court that the Church was the general contractor for the project. (c) Rosenbalm knew that Equitable's contract with the Church required Equitable to obtain the building permits. But he also knew that Equitable was incapable of acquiring the Sanctuary permit, because of their limited license (at the time $1,000.000). He also knew that had Equitable applied for this permit, they would have been refused. 3. Perjury Regarding the Status of the Workers as "Subcontractors"
(a) The only word that refers to the multitude of workers responsible for various parts of the Project in any Church Project document is "subcontractor" or "material supplier." (b) Rosenbalm himself edited and signed the specially drafted Addendum to the Church's contract with Equitable which specifically defined the term "subcontractor"—and which included in that definition "third parties with whom the Church contracted directly"—ie., the 24 or so parties who signed"Sub-Contract Agreements" identical to 68 Steel's. (c) Rosenbalm himself presented the specific motion before the Church that the Church membership authorize the Building Committee and Equitable jointly to make agreements with "subcontractors and material suppliers." 138. Contradictory Statements regarding the Project Documents' "Subcontractor" Terminology: With regard to the twenty-some agreements with Project workers which are headed "Sub-Contract Agreement" and refer to the workers as "Sub-Contractors": (a) Rosenbalm first testified that he told Equitable's President David Dierks that the contract terminology "subcontractor" was misleading. (b) Later he testified to the contrary that he did not think this terminology misleading, saying, "I don't see how anybody could be misled by this." (c) Rosenbalm testified that he "knew the law." As a lawyer, he knew the principle that the terms used by those who draft a contract will generally be given their plain (or in some cases, industry) meaning, and if ambiguous, will be construed against the drafter. (d) The Church membership had expressly authorized the Church and Equitable to enter into contracts with "subcontractors"—not "contractors." The Church's contract with Equitable says specifically that Equitable's job was to obtain and award "sub-contracts." (e) Regardless of the foregoing, Rosenbalm testified that whether the workers were contractually labeled "subcontractors" or (in his own mocking words) "carrier pigeons" was of no consequence at all —"just arguing semantics." 139. Concerning the Licensure Status of the Project Workers: Rosenbalm stated that he "certainly" "assumed" that 68 Steel and all the many other subcontractors that the Church offered subcontracts to were actually licensed by the Tennessee Contractors Licensing Board. However: (a) Rosenbalm "knew the law," and also knew that the Church would be contracting directly with over forty Project workers and suppliers—a multiple criminal offense if these parties were actually required to be licensed and were not. (b) Assuming arguendo that his statements that he was knowledgeable about construction and "knew the law" was true—Rosenbalm "certainly" knew that (except for the "Specialty Subs") workers providing only a portion of the work on a project are typically subcontractors and are not required to be licensed. 140. Concerning Kelley's Status: Rosenbalm testified that Project Superintendent Jim Kelley was not an employee of the Church. However: (a) Jim Kelley himself has admitted under oath that he was an
employee of the Church, and that his work was directed by Tom Jensen, Co-Chairman
of the Building Committee.
(c) The Church's Project Specifications Document states that the superintendent will be provided by the Church. (d) Payroll records and W-2 forms show that Kelley was a direct employee of the Church. (e) The Church also provided Kelley's job site office and job
site telephone.
(a) The Church provided Kelley as the Project Superintendent, and employed him directly. (b) Kelley has admitted under oath that he reported to Tom Jensen, not Equitable, and that his work was supervised by Tom Jensen, not Equitable. (c) Kelley's Daily Job Records from the Project show that he was directed in his work by Jensen on a frequent and regular basis. 142. False Characterizations of the Meeting With 68 Steel: Rosenbalm falsely stated that the primary purpose of his and Jensen's meeting with 68 Steel's representatives and lawyers on or about August 10, 1990 (referred to above) was 68 Steel's unjustified request for more money, when in fact the primary purpose was to have 68 Steel's lawyer/architect and structural engineer present to Rosenbalm and Jensen the engineering findings that the steel fitting problems were irrefutably the result of faulty foundations, and not a result of 68 Steel's work. 143. Denying Evidence of Errors in Plans and Specifications: Rosenbalm falsely stated that "there was nothing presented to us [at the meeting] that suggested there had been any mistake in these plans." In fact, at this meeting he was presented with a Laser Survey by 68 Steel's own structural engineer, as well as that engineer's verbal and written reports confirming the building's column lines and column positions were substantially misplaced. 144. Denying Knowledge of the Mislocation of the Projects Supporting Columns: Rosenbalm denied any understanding that the primary steel columns supporting the entire Project's structure were mislocated. Yet at the meeting he was presented with a laser survey showing just that situation, accompanied by the structural engineer's written report, with the engineer and an attorney/architect presenting the information. Also by August 10, 1990 the Church's own engineer Campbell had done a survey showing the columns to be misplaced. 145. Denying Recollection of Meetings with 68 Steel Attorney Keith McCord: Rosenbalm denied any recollection of specific meetings with 68 Steel's then attorney Keith McCord. However, (a) McCord and 68 Steel's representatives met with Rosenbalm on at least two occasions, during which Rosenbalm was informed that 68 Steel intended to sue the Church if it were not compensated for the negligence and wrongdoing of other parties. (b) The attorney who "took over" representing the Church when
Rosenbalm became Judge in September 1990 (Michael Winchester, Esq. who
has also served as Chairman of the Church's Board of Trustees) continued
the direct communication with McCord.
146. Complainant incorporates herein by reference paragraphs 1 through 145 of this Complaint. 147. Defendant attorney and Judge Wheeler Rosenbalm testified
falsely, with the intent to deceive, during a deposition under oath, taken
November 3, 1995. 148. Complainant incorporates herein by reference paragraphs 1 through 147 of this Complaint. 149. As part of a larger conspiracy, defendant Wheeler Rosenbalm conspired with attorney Reggie Keaton to perpetrate a fraud on the Court by submitting to the Court false representations of fact and applicable law concerning the Church's role and activity in the Project. 150. As part of a larger conspiracy, defendant Rosenbalm also conspired with attorney Keaton to defraud the Court by (a) suppressing and/or withholding critical Church documents concerning the Project, and (b) suppressing and/or withholding such specific legal authority as a copy of Tennessee Attorney General's Opinion No. 93-12 which was later discovered to be in the Court Records File. This A.G. Opinion is directly on point in defining the legal status and obligations of "Owner-Contractors," and is compelling authority directly contrary to Rosenbalm's allegation that the Project's subcontractors were required to be licensed by virtue of their contractual privity with the Church. 151. Despite false statements to the contrary, Rosenbalm thoroughly prepared for his deposition with attorney Keaton, and Keaton knew that Rosenbalm was testifying falsely during the above referenced deposition. Their conspiracy to deliver perjured testimony, suppress relevant material documents, and submit false representations of fact and law to the Court constitutes obstruction of justice. 152. Complainant incorporates herein by reference paragraphs 1 through 151 of this Complaint. 153. Judges are subject to the Disciplinary Rules of the Supreme Court, as is any other attorney licensed by the State of Tennessee. 154. Defendant Rosenbalm's acts and/or omissions as described in this Complaint comprise violations of DR 1-102(A)(1), (A)(3), (A)(4), and (A)(5). Rosenbalm's conduct as described in this Complaint includes perjury, dishonesty, fraud, deceit, misrepresentation, and conduct prejudicial to both his own clients and the administration of justice. 155. While a licensed attorney, and acting as counsel to the Church, Rosenbalm assisted the Church in conducting the construction Project described herein in a manner he knew to be unlawful. Rosenbalm perpetrated a fraud of major proportions, not only on the many subcontractors involved, but on his own Church membership, putting his own organization at liability for the many unlawful acts he orchestrated by conducting the Project without a properly licensed contractor. Participating in this illegal activity is a violation of DR 1-102(4), and also a violation of DR 7-102(7) — Assisting a client in conduct the lawyer knows to be illegal or fraudulent. 156. While a judge and lawyer, Rosenbalm participated in the creation and delivery to 68 Steel, and to his own Church members and others, of a fraudulently altered copy of the Church's engineering survey of the Project. Rosenbalm knew that this "evidence" had been materially altered by the erasure of a critical data. Rosenbalm's participation in the creation of and delivery of this false evidence is a violation of DR 7-102(6). 157. Complainant incorporates herein by reference paragraphs 1 through 156 of this Complaint. 158. As a Judge is also a licensed attorney, serious violations of the Disciplinary Rules is a concomitant violation of the Code of Conduct for judges. 159. Pursuant to Canon 1, and Canon 2 of the Tennessee Code of
Judicial Conduct, a judge is to uphold the integrity of the judiciary and
observe high standards of conduct which Rosenbalm's activities as described
herein surely do not show. Likewise, pursuant to these Canons, a
judge is expected to respect and comply with the law himself, which Rosenbalm
has failed to do, by committing numerous illegal acts, and then lying about
them under oath.
WHEREFORE, PREMISES CONSIDERED, Plaintiff, Scot T. Chrisman, requests the following relief: 1. That if subsequent to a proper investigation the Court finds Defendant to have committed one or more of the offenses as alleged, the Court proceed to a directed verdict in this matter. 2. That if the Court finds that this matter should be decided by a trier of fact, a jury be impaneled. 3. That upon a finding that Defendant is guilty of one or more of offenses described herein, the Court recommend Defendant for disbarment or disciplinary procedures, including impeachment, as prescribed by Law. 4. All other relief, including fines and/or sanctions as the Court
deems just and equitable.
Respectfully submitted, By: _________________________________
APPENDIX A. EXHIBITS
Exhibit 1. Equitable's Proposal Letter to the Church
Exhibit 2. Church's Authorization of Contracts with Subcontractors Exhibit 3. Letter from City of Knoxville's Chief Building Official Charles Cummins Exhibit 4. Sanctuary Building Permit Exhibit 5. Affidavit of Project Architect Bryant Glasgow Exhibit 6. Minutes of Church Planning Meeting Exhibit 7. Relevant Excerpts of Chancery Court Hearing Transcripts Exhibit 8. 1993 Attorney General's Opinion re "Owner/Contractors" Exhibit 9. Selected Excerpts from Rosenbalm's 1995 Deposition
Transcript
B. Statute "Disciplinary Proceedings" §23-3-202
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