Attorneys spar over depositions in Town of Waukesha plowing dispute
Waukesha - With the Waukesha Town Board and its snowplowing contractor knotted in a court fight over last year's road clearing costs and current contract, a Waukesha County reserve judge Monday stopped short of considering sanctions sought by the contractor's attorney against the town.
However, Judge Patrick Snyder warned that a lack of cooperation could still lead to sanctions in the future.
Attorney Dean Richards, representing contractor Eric S. Jacobson Grading Co., sought to quash the town's subpoenas of 14 snowplow drivers who worked for Jacobson because he said town attorney Hector de la Mora failed to give the required 10-day notice - or any notice - to him of planned depositions.
Most of the depositions were scheduled for this week.
Shortly before Monday afternoon's court hearing, Richards said he received a message on his Blackberry from de la Mora saying the depositions had been canceled. The judge said Richards could make the request for sanctions again later before Waukesha County Circuit Judge J. Mac Davis, who normally presides over the case.
In his motion and attached correspondence filed with the court, Richards wrote that a deposition scheduled for last Friday was canceled, yet de la Mora did not notify those subpoenaed, nor had other witnesses scheduled for this week been notified of cancellation.
"In one case, a witness is a 'crew leader' of a six-man crew that works on an Illinois construction project," Richards wrote in a letter to de la Mora on Aug. 21. "He had to cancel his work day on Friday because of your subpoena, resulting in all six persons on the crew not being able to work on Friday." He called de la Mora's failure to communicate "reprehensible" conduct.
In email exchanges with Richards, de la Mora said that since Richards had provided potential dates for depositions, he contends Richards waived the notification requirements - something Richards disputes.
Meanwhile, the Town Board on Thursday night is scheduled to discuss a "plan for new snow season," according to the meeting agenda. Town Chairman Angie Van Scyoc referred a reporter's questions to de la Mora.
The town has asked a judge to determine whether the contract with Jacobson Grading is enforceable, and if it is, whether the company has breached its contract.
New contract last year
In his earlier court filing, de la Mora said the dispute arose because a prior town chairman and prior town supervisor, facing recall by voters, approved a new snowplow contract that had terms unfavorable to the town. He said the contract gave full control of snow plowing activities to Jacobson Grading while removing it from the Town Board.
The town has complained about the cost and quality of plowing while Eric Jacobson, through his attorney, complained this year that Town Board members interfered with snowplow operations, including during a blizzard, by following the plows, stopping drivers and demanding information, and asking for sand-salt samples in the middle of plowing.
Jacobson Grading has provided snow plowing services to the town since 1984, but a new contract was required last November. The new Town Board members who came into office as a result of the recall established new polices and procedures in December, and the board has not paid Jacobson Grading nearly $300,000 in contract fees and related costs.
Jacobson has filed a counterclaim against the town for payment of the funds and for breach of contract.
Citing the town's alleged breach, Richards said Monday he did not know what Jacobson would do about snowplowing this winter, even though he holds the contract through the winter of 2012-'13.
