It's considered a "first impression case" and that means there is a lot at stake.

What happens now could set a precedent later.

The case: John Arkell and Carriage Homes, Inc. versus the state of Minnesota.

"Potentially, it could affect all building codes in the state, said Susan Naughton, attorney for the League of Minnesota Cities.

Secondly, Naughton believes the case raises issues "not yet raised" before the courts and, therefore, it's a case of first impression.

Austin attorney Lee A. Bjorndal, an attorney with Baudler, Baudler, Maus & Blahnik, has been notified by the Minnesota Supreme Court "when I would be unavailable for oral arguments this summer."

That's a sure indicator the case that originated in Mower County Third Judicial District Court is headed for the state's highest court.

Presently, both sides in the issue are preparing to file briefs later this summer. Arkell will have friendly briefs filed by the Builders Association of Minnesota and the Builders Association of the Twin Cities.

Contractors and developers have a lot at stake in this court battle. Previously, when something went wrong with a development, it became an exaggerated case of finger-pointing and developers and contractors moved on to new projects unscathed.

Naughton and the League of Minnesota Cities will file their own friendly brief on behalf of the city of Austin.

At stake for the plaintiff are not only Austin's own building code, but the hundreds of building codes in municipalities throughout the state and whether or not they can be upheld to protect the public.

Bjorndal will file briefs. Then, each will file response briefs, and finally the Supreme Court will debrief both sides and hear oral arguments; possibly in late August.

LMC carries weight

Bjorndal calls the LMC's attention "a big gorilla on my side."

While it is still possible, the Supreme Court could exercise its discretionary review and regard the briefs filed as enough information to make a decision, that is unlikely at this stage.

"There is simply too much broad state-wide interest in this issue," Bjorndal said, "and the ability of municipalities to enforce their building codes. The responsible corporate doctrine is very clear. Both the district court and the Appellate Court have agreed the argument that a contractor or developer can't be held legally responsible for somebody else's work is simply not valid."

Criminal prosecution of contractors and developers is rarely sought, but owners of Southwinds Homes in southwest Austin did and won a conviction.

Arkell and Carriage Homes, Inc. developed an area off 16th Avenue SW in the late 1990s, finishing in 1998.

When drainage problems occurred, the condominium association's members sought redress from the developer. However, Arkell said the problems -- i.e., the townhomes were not property elevated to avoid standing water -- were the sub-contractors' fault and ignored a series of seven letters of complaints sent in 1999-2001.

The case went to court a year ago, when Arkell and Carriage Homes, Inc. (Arkell is the president, chief executive officer and sole stockholder in Carriage Homes, Inc.) were charged with violating the state building code, which the city has incorporated as its own.

The district court found the foundation elevations were lower than permitted by the state code and caused storm water to pool in the townhome owners' garages and driveways.

Two counts against the defendant were dismissed, but he was convicted of violating one count of the code by providing the 38 units with inadequate foundation elevations.

Carriage Homes, Inc. pleaded guilty, but Arkell as an individual pleaded not guilty. In a trial in May 2001 before Judge Donald E. Rysavy, Arkell was found guilty under the responsible corporate officer doctrine of the law.

He was fined, ordered to make restitution to the condominium owners and sentenced to 90 days in jail with 90 days stayed if he complied with the other conditions of his sentence.

Arkell appealed the verdict, but lost when the appellate court upheld Rysavy's district court ruling in March.

Arkell's defense has been that he was not responsible for the subcontractors' deeds and that the district court decision wrongly interpreted the corporate responsibility law.

Lee Bonorden can be contacted at 434-2232 or by e-mail at :mailto:lee.bonorden@austindailyherald.com