Espinosa v. State

EYLER, JAMES R., J. During a civil jury trial in the Circuit Court for Montgomery County, the court found Eric Espinosa, appellant, guilty of committing direct criminal contempt and summarily sanctioned him to 10-days incarceration. On appeal, appellant contends that summary proceedings were not warranted because his conduct did not prevent the civil trial from proceeding to verdict, and maintains that, in any event, the contempt finding was based on extrinsic evidence not within the personal knowledge of the court; thus, it should have been treated, if at all, as constructive, rather than direct, contempt. Further challenging the court’s finding of direct contempt, appellant argues that he was denied due process in that he was not given notice of the conduct the court considered to be contemptuous, and was denied his right to counsel. The State contends the finding of contempt should be affirmed.

As explained below, we will reverse. Factual Background This case began as a civil action instituted on December 10, 2008, by Loflane Joint Venture (“Loflane”) against National Institute of Vehicle Dynamics (“NIVD”) for breach of a commercial lease. Loflane is a landlord/lessor of commercial warehouse space. NIVD is a corporation that provides driver training and instruction to motorists.

Appellant, a District of Columbia police officer, acts as executive director for NIVD. In an effort to expand its operations into Montgomery County, NIVD entered into a commercial lease, dated April 30, 2008, with Loflane with the intention of using the leased space, located at 649 Lofstrand Lane, as its headquarters and as a training site. In its suit, Loflane alleged, inter alia, that NIVD neglected its obligation to pay rents under the terms of ³⁵⁹ the lease as it had vacated the leased premises and owed back-rent, late charges, and other fees. The complaint 1 also alleged that NIVD and appellant had made alterations to the premises, but did not return the premises to its original condition, as per the terms of the lease.

As the payment obligations under the lease were guaranteed by appellant, Loflane also sued appellant as guarantor. NIVD and appellant defended the suit, and counter-claimed, by contending that NIVD had been constructively evicted from the leased premises due to the presence of leaking water and other contaminating substances entering NIVD’s premises. The counter-complaint also alleged that NIVD and appellant had retained engineers and architects to “build out” the premises for their purposes; that appellant and his wife became ill each time they entered the premises; that Loflane was aware of the leaks; and, that appellant had contacted Loflane regarding the leaks, but that Loflane failed to respond. Loflane answered the counter-complaint by, apparently, 2 claiming that there was never a constant leaking issue in the space; that it never received any complaints about any leaks from appellant; that it never failed to respond to any of appellant’s phone calls; that appellant’s first mention of a leaking pipe or leaking water occurred after he was sued for possession of the property in November of 2008; and, that NIVD and appellant were now fabricating the complaint of the leaking pipe to avoid their obligations under the lease to pay the rents due. ³⁶⁰ On December 10, 2008, Loflane filed a motion for summary judgment.

On February 13, 2009, NIVD and appellant filed an opposition to motion for summary judgment. Attached to the opposition was an affidavit of appellant (dated February 13, 2009) in support of the opposition. In that affidavit, appellant attested to the truth of the allegations in the counter-complaint and in the opposition to Loflane’s motion for summary judgment. In addition, appellant swore to the following facts: that shortly after entering into the lease, he noticed water leaking into the premises from the floor above, and that he contacted Loflane but Loflane failed to repair the leaks; that “flakes of rust” were coming off of the ceiling; that he and his wife were “getting nauseated every time” they entered the premises; that his investigation into the upstairs premises revealed that it was in the business of animal testing, and that the cages of the animals were washed out into a “pit where the water leaked” into NIVD’s premises; and that the chemicals used to clean the premises above NIVD’s were harmful.

On April 1, 2009, after a hearing, the court 3 denied the motion. On January 12, 2010, Loflane renewed its motion for summary judgment. Attached as exhibits to Loflane’s renewed motion was, inter alia, the transcript of a June 1, 2009, deposition of appellant. NIVD and appellant responded on February 1, 2010, again attaching an affidavit of appellant (dated January 27, 2010) in support of the opposition.

In the second affidavit, appellant attested to the following facts, in relevant part, as taken from his affidavit: 3. In early 2008, on behalf of NIVD, I sought to lease office space in Montgomery County for purposes of building out a facility that could be used for advanced driver training, court-mandated driver improvement training, and basic drivers education, as well as for office space. 4. In April, 2008, I was shown warehouse space ... and introduced to HBW Group,[ 4 ] whom I understand to be the ³⁶¹ Building’s leasing agent and property manager. I made clear to Herb Patterson of HBW Group NIVD’s particular needs, including the fact that the space would be used to train members of the public.

HBW Group offered space in bays K and L on the ground floor of the Building, and represented that the space was suitable for NIVD’s needs. 5. Based on HBW Group’s representations and warranties that the space was habitable and suitable for NIVD’s intended uses, I entered into a Commercial Lease Agreement (the “Lease”) on behalf of NIVD on April 30, 2008. On that same day, on behalf of NIVD, I wrote a check to HBW Group in the amount of $3,704.25 as a security deposit. 6. NIVD spent approximately $12,000 for architectural work and initial demolition of the leased space and paid a real estate broker commission of $3500.

NIVD also paid rent for the space through the month of August, 2008. 7. Shortly after entering into the Lease, I observed water leaking into the space from the [floor] above and pooling on the floor of the space. I contacted HBW and reported the water, but HBW did nothing in response. 8. After installing lighting in the space — there was almost no workable lighting in the space at the time I was shown the space and at the time I signed the Lease — it became apparent that leaking water had been a longtime issue in the space.

The ceiling was covered with rust, and flakes of rust began to cover a large portion of the premises, including boxes and other materials that NIVD had moved into the space.[ 5 ] 9. On numerous occasions, water leaked from the premises above NIVD’s leased space and pooled on the ground. Again, my efforts at seeking assistance from HBW Group went unheeded. 10. In late June, 2008, I visited NIVD’s leased space with Toba Greenbaum.

After spending a few minutes in the ³⁶² space, both of us became extremely nauseated. I was seized with incredible abdominal pain, accompanied by the sensation of an imminent involuntary bowel movement. Both Ms. Greenbaum and I fled the space, after which our symptoms subsided. Ms. Greenbaum refused to return to the space thereafter. 11.

On June 30, 2008, I spoke with Richard Ireland of Biocon, Inc., the tenant in the space immediately above NIVD’s space. Mr. Ireland had offered to fix yet another leak that was causing water to run down the wall of NIVD’s space and pool on the floor. At that time, Mr. Ireland, a longtime tenant in the Building, informed me that HBW Group “takes their time when it comes to fixing things.” Further, when I asked Mr. Ireland why he was using bleach to mop up the water that had pooled on the floor, he informed me, for the first time, that Biocon, Inc. was in the business of pharmaceutical testing on animals, which involved injecting the animals with cancer tumors and then subjecting the animals to various chemotherapy treatments. I subsequently learned that Biocon, Inc. stored hundreds of hazardous chemicals on-site.[ 6 ] 12.

The leaks continued in the space through July, August and September. (In fact, I had given Mr. Ireland a key to NIVD’s space because of the ongoing leaks.) On or about September 8, 2008, a major leak occurred in the space, with water pouring down the wall from Biocon’s space and pooling on the floor of NIVD’s space to a depth of more than an inch. I called HBW Group on September 8 to complain about the flooding, but did not receive a reply. 13. Following the September flood, I asked Richard Ireland if I could expect the dripping and flooding to stop.

He told me that I could not, “because it’s an old building.” ³⁶³ 1[5]. At that point ... having endured constant water intrusion and the September flooding, having become extraordinarily ill in the space, having been informed that HBW Group was unlikely to make any effort to remedy the leaks, having experienced first-hand HBW Group’s cavalier attitude toward tenant problems, and knowing that the water invading NlVD’s space was from a facility that performed animal testing and used and stored hazardous chemicals, I decided that NIVD could not subject its clients— primarily high-school students — to risk of illness at the Building, nor could NIVD risk constant water damage to its facilities. Therefore, I called HBW Group on several occasions asking to be released from the Lease. I also put a hold on any construction at the space; consequently, although demolition work removed some pre-existing walls and a drop ceiling, nothing was ever built out. 1[6].

I was finally able to arrange a meeting with Joanne Senall[ 7 ] of HBW Group, which was held at HBW Group’s offices on October 17, 2008. At that time, 1 explained that the ongoing water leakage, HBW Group’s unwillingness to repair the water leaks, my experience with nausea, and Biocon’s activities had caused me to conclude that the space was not suitable for habitation or for NlVD’s intended use. I asked to be released from the Lease. Ms. Senell refused, explaining that the Building’s owners were “very aggressive,” were “very well funded” and would “pursue you legally” if NIVD failed to pay rent for the entire lease period.[ 8 ] 1[7].

It was only after the October 17 meeting that Loflane Joint Venture filed its action in the District Court for repossession of the property[ 9 ] ³⁶⁴ 1[8], When I appeared at the [November 12, 2008] hearing, the judge informed me that NIVD could not appear without an attorney. An attorney present in the courtroom offered to help, and advised me that the suit was merely for repossession of the property. The attorney said that if I was willing to turn over the keys, there would be no need to oppose the Complaint or to hire an attorney. I therefore agreed to turn over the keys, which I did promptly thereafter.

On March 22, 2010, the court 10 denied Loflane’s renewed motion for summary judgment. On June 1, 2009, appellant was deposed. During his deposition, the following transpired, in relevant part. With regard to his marital status, appellant testified as follows: Q. Are you married?

A. No. Q. Have you previously been married? A. Yes. Q. What’s your spouse’s name or ex-spouse at this time? A. It was back in 1993.

Q. I am sorry. You indicated in your Answers to Interrogatories that your wife— A. Toba Greenbaum. We were actually not married, but we lived together for 13 years. Q. But at the time that this lawsuit arose you were not married?

A. I’ve never been married to her. Q. So you never had a spouse or a wife? You did in 1993? A. Correct.

I was divorced. Q. Okay. ³⁶⁵ A. And then I’ve been with this woman that I’m referring to. Q. As your wife? A. As my wife, yes.

Q. And her name was Toba, T-o-b-a? A. Toba Greenbaum, yes. With regard to NIVD’s vacation of the leased property, appellant testified: A. We haven’t paid rent for that property since we relinquished custody or we were evicted. Q. You were evicted?

A. Yes. Q. So you didn’t pay rent ... ? A. No. Q. When did you relinquish the keys to the property? A. I don’t recall.

Q. You have no recollection of when you turned over the keys and vacated the property? A. Approximately in September [of 2008]. With regard to renovations undertaken by NIVD on the property, appellant testified: Q. During the course of your possession of the premises ... was there any construction going on inside the premises? Did you contract for construction, renovation, demolition of the property?

A. Yes. Q. What types of construction or renovations were done? A. We did demolition of some walls to the existing structure. Q. You knocked down walls?

A. We took out a few walls. Q. So you demo’d some walls and that was the extent? A. Correct. ³⁶⁶ Q. Did you have permission from Loflane to do the renovations? A. Yes.

Q. Was the permission written or oral? A. Written. Q. Do you have a copy of that? A. No. Q. Would NIVD have a copy of the written permission from Loflane?

A. I don’t know. Q.....When did the renovations begin? A. Approximately, May. Late May, early June [of 2008].

With regard to visiting and inspecting the premises prior to leasing it, appellant testified: Q.....Prior to leasing the premises ... did NIVD have the opportunity to view the premises or anyone on their behalf? A. Yes. Q. Who viewed the premises? A. Myself and Dan Manoff.

Q. Who is Mr. Manoff? A. He’s an instructor with [NIVD]. Q. Do you know what date you would have viewed the premises prior to the rental? A. I don’t recall the date.

Q. Do you remember what month it would have been in? A. Probably mid April before we signed the lease. Q. Did you make any observations at that time regarding the premises? A. None that I was aware of. ³⁶⁷ Q. Did you see any leaks?

A. Not that I recall. Q. Did you inspect the entire property, the entire premises, rental premises? A. It was very dimly lit. A lot of light bulbs were broken out, so when we were in there the lighting was not the best.

Q. Who were you with? Were you with someone from— A. Hurt Patterson, Bernard Maitz,[ 11 ] he was my [leasing] agent. Hurt Patterson I guess would be the partner with HBW. With regard to the leaking water and his attempts to contact the HBW Group in that regard, appellant testified: Q. ... [A]s part of your counter-claim you’re claiming that there were pre-existing leaks in the premises; is that correct?

A. Yes. Q. When did you first notice these leaks or leak? A. Early May I contacted a person at HBW. His name is Coleman, on several occasion about the leaks.

And after a few phone calls and a lot of frustration, because he would never return my calls, I then actually was approached by Rich Ireland, who then I found out was with BIOCON. He told me that HBW was not very diligent in fixing problems on the property and he would be assisting me with the leak. And then he volunteered to come down and mop the water with bleach. Q. When did this conversation occur?

A. Early May, after the lease was signed. Q. When you first noticed the leak or leaks, where were they coming from? ³⁶⁸ A. A ... peach wrap which is kind of like a joint. It’s called a peach wrap. It comes out of a drain, which was in the ceiling of the unit we rented, coming from the BIOCON property above us.

A. ... [Richard Ireland] told me that was the cleaning part where they clean the animal cages. Q. And you said that you contacted Loflane. Do you recall the date that you first contacted Loflane regarding the leak? A. It was shortly after the lease was signed.

Q. And this was by phone? A. Correct. * * * Q. And you said you tried to contact Loflane on several occasions. Do you know approximately how many times? A. I think it was at least eight times [over a period of several months]. * * * A. And finally in September I met with Joann Snell [sic].

A.....I think it was September 27 to be exact. I wrote a letter stating we wanted to be released from the property due to never fixing the leaks and the fact that I was feeling nauseous on the property due to unknown circumstances. * * * Q. Did you call anyone outside of Loflane to fix the leak? A. I was dealing with Richard Ireland from BIOCON and he was working with me. * * ❖ Q. The date that you are talking about that Mr. Ireland came down and mopped up— Q. ... [Y]ou don’t have an exact date on that? ³⁶⁹ A. No. Q. Did you, yourself outside of what Mr. Ireland said, ever determine the cause of the leak. A.....I have no idea what caused the leaks.

I just know there was standing water on the floor. With regard to the contaminants that were allegedly entering NlVD’s leased premises from Biocon, above, appellant testified: Q. Did you ever come to find out what was leaking? A. It was a drain for their animal cages where they would wash them. So I imagine all the excrement from the animals that were causing cancer would be what was leaking into our space.

Q. Okay. Did you ever have the liquid that was leaking from the drain tested. A. No. Q. Did you ever call the EPA regarding the leak? A. Yes.

Q. Do you know [if the person who responded from the EPA] did any tests? A. He walked the premises. He took several pictures of what was going on there. And I asked him if he would occupy the premises.

And he told me absolutely not. Q. But you don’t know if he did any tests on the liquid or took a sample? A. Not that I’m aware of. Q. Now, you said you imagine that the water leaking into the premises contained excrement from the animals, but you don’t actually know that?

A. No. ³⁷⁰ Q. So that’s your supposition that that’s what was leaking into the premises? A. From the drain where they clean their cages, correct. The fact that Mr. Ireland was talking about mopping it up with bleach, would lead me to believe that. Q. But Mr. Ireland didn’t actually tell you what was leaking into the premises?

A. No. With regard to the illness that appellant allegedly suffered, and the treatment he allegedly sought, he testified: Q. Can you describe the nature of the physical harm? A. When I was in the premises, actually had the feeling of like nausea and like I immediately had to have a bowel movement. And I actually exited the building. And once I got out to fresh air, it started to dissipate.

Q. Do you recall a date? A. I don’t recall. It was probably somewhere June, July, somewhere in there. And I was with Toba at the time. * * * Q. And did you seek any medical treatment?

A. I did get a CAT scan of my head and sinus to determine if I had any infections in my sinuses from any exposure that I may have had. Q. When was the CAT scan done? * *N * A. Approximately in June, July, August, September. Q. August or September? A. In there.

Q. June, July, any time in there? A. Somewhere in there. Q. Where was it done? ³⁷¹ A. There is neurologist center in Germantown on Bowling Farm Road. I was having headaches also.

On June 16, 2010, a jury trial began, at which appellant testified. Appellant asserts — and the State does not challenge — that during his testimony, appellant “did not use expletives, showed complete deference to the trial court, and conducted himself in an appropriate manner befitting a court proceeding. [He] also did not disobey any order of court and did not interrupt the proceedings by way of his absence, disrespect or outburst during trial.” Appellant’s sworn trial testimony, however, was inconsistent as compared to his pretrial sworn affidavits and deposition testimony, as well as inconsistent between his testimony on direct examination and his testimony on cross-examination. In particular, appellant testified to the following. On direct examination, appellant testified that he engaged Mr. Mizell to find a property for NIVD’s business, and Mr. Mizell took him to 649 Lofstrand Lane.

After viewing the property, but before signing the lease, appellant spoke with Herb Patterson of HBW Group, Loflane’s representative, and explained to Mr. Patterson NIVD’s purposes for the space. Appellant also told Mr. Patterson what his plans were for “building out” the space, and Mr. Patterson told appellant that the space was perfect for NIVD’s needs. After NIVD entered into the lease agreement, and appellant guaranteed the agreement, NIVD began some demolition work of the space. Appellant testified that he had informed Loflane that he wished to perform the demolition work and showed the landlord what specific demolition work NIVD was undertaking, and Loflane never told NIVD that the demolition work could not be done or that there were any conditions on demolition.

Appellant’s counsel asked appellant about a letter dated May 14, 2008, admitted as Plaintiffs Exhibit 4, from Ms. Senall, Senior Property Manager of the HBW Group, to appellant. Ms. Senall had previously testified that she sent the letter to appellant, which letter confirmed receipt of ³⁷² NIVD’s proposed demolition and build-out plans, and requested that, “prior to commencing demolition and construction,” appellant provide Loflane copies of the required permits as well as a certificate of insurance from the contractor. Appellant testified that he never received the May 14, 2008 letter. Appellant testified that he created, from his Verizon cellular telephone bill (admitted as Defendant’s Exhibit 35), a chart or “summary” of all of the telephone calls made to HBW and Richard Ireland (admitted as Defendant’s Exhibit 22) with regard to the leaks.

Appellant testified that he called HBW on June 9, 2008, to complain about “leaks in the property to Mr. Coleman [who] was Ms. [Senall’s] personal secretary.” He stated that it was on that date that he first discovered the leaks. According to appellant, Mr. Coleman did “[n]othing” in response. The summary next purported to show a 4-minute call on June 24, 2008, at 3:24 p.m., again to Mr. Coleman. Appellant testified that he called Mr. Coleman to complain that he “was unresponsive and was not returning [his] calls and was not taking any action on [his] issues.” According to appellant, there was still water on the premises.

The summary also showed calls on June 25 and 27, 2008, to the HBW office. Appellant stated that he was again calling to complain about the “water problems.” With regard to the June 27 call, the summary showed that appellant placed the call to HBW at 2:31 p.m., and approximately an hour and 17 minutes after that call, appellant placed a one-minute call to Richard Ireland. Apparently in an effort to prove an agency relationship between Mr. Ireland and/or Biocon and HBW, the following colloquy ensued between counsel for both NIVD and appellant, and appellant: Q. All right, and this one-minute call is a call you placed to Mr. Ireland? A. That’s correct.

Q. Now, why did you place a one-minute call to Mr. Ireland? ³⁷³ A. After I made the complaint [to HBW] on the 27th, which was the same day I made that one-minute call, he shows up in the premise. Q. Who is the he? A. Mr. Ireland shows up on the premise, he introduces himself. Q. Mr. Ireland comes an hour and 17 minutes after you have called the HBW office complaining about this leak, Mr. Ireland appears.

A. Correct. Q. All right, why is if you’re talking to Mr. Ireland you place a one minute call to Mr. Ireland? A. I got his phone number verbally from him and I actually punched in the phone number into my phone so I would have it in my phone.... Q. Okay, and so at this point, roughly an hour and 17 minutes after you had called with yet another complaint to HBW office, Mr. Ireland is face-to-face with you.

A. That’s correct. * * * Q. Okay ... did you tell Mr. Ireland about the concerns you had with leaks on the premises? A. That’s correct. Q. Okay, and did Mr. Ireland offer to remedy that at all? A. Yes, he did.

Q. Okay, and did he remedy that? A. Continually, yes. Appellant testified that on September 8, 2008, he called HBW to make sure Ms. Senall was there so that he could drop off a rent check for August that he had been withholding from HBW due to the “continual problems with the space.” After the call, he did, in fact, deliver the check at approximately 3:46 ³⁷⁴ p.m. Ms. Senall did not mention to appellant that there had been a “leak of water on the 7th and 8th.” 12 Appellant testified that he had not been on the premises on September 7th or 8th.

Appellant testified that after Loflane filed suit for possession of the property, he appeared in court. Nobody from Loflane or HBW told appellant that what they were seeking from him at that time were the keys to the property. The first time he heard anything about returning his keys was a “day before [he] actually turned them in” when he “learned that the token of relinquishing custody of the space was turning in your keys.” On cross-examination, appellant agreed that his testimony was contrary to the previous testimony of Mr. Ireland and Ms. Senall, but swore that he was not lying. He stated that he could not recall executing two affidavits, although he did remember being deposed under oath.

Appellant agreed that he had testified to the illness that his “wife” had sustained after she visited the premises, but affirmed that, in fact, he had not actually been married since 1993 and that he was not legally married to his “live-in” girlfriend, Ms. Greenbaum. Appellant testified that he visited the premises “[a]t least twice” prior to renting it. On the first occasion, he visited the property with Mr. Mizell, his broker, and Mr. Patterson, Loflane’s broker. He did not believe that Mr. Patterson visited the property on the second occasion.

When counsel asked appellant whether, pursuant to his deposition testimony, Mr. Manoff had visited the premises with him prior to the ³⁷⁵ lease signing, appellant responded that he did not recall, but that he “must have been there if [appellant] said he was.... ” When confronted with the lease agreement, appellant agreed that per the terms of the agreement, any structural changes, alterations, improvements, et cetera, required prior written consent of the landlord. He stated that he believed Loflane gave him written permission, by way of the May 14, 2008 letter from Ms. Senall, which was previously admitted as Plaintiffs Exhibit 34, to undertake the renovations on the property. He agreed that based on that letter, he felt that he was in compliance with the terms of the lease. Counsel then reminded appellant that he had previously testified that he never received the May 14 letter.

Appellant responded that if that was what he said, then he did not receive the letter, but he maintained that he received permission to begin demolition, and that he “thought it was a verbal permission,” notwithstanding the fact that the lease required written permission. Appellant testified that he first became aware of the leaks on June 9, 2008, and first complained to HBW via Mr. Coleman on that date as well. When confronted with his deposition testimony wherein he had testified that he contacted Mr. Coleman in May, appellant admitted that he was not telling the truth at that time, but that his trial testimony was the truth. Counsel questioned appellant with regard to the two telephone calls on June 27, 2008, one being to HBW and the other to Mr. Ireland, and the following transpired: Q. And the 27th, you and your counsel spoke a lot about ... two calls on the 27th.

Q. And you remembered those very specifically, right? A. That’s correct. Q. Tell me why you remembered those so specifically? A. Because that’s the first time I met Mr. Ireland.

Q. The second call. A. Correct.... ³⁷⁶ % * * Q. And you’re sure you called HBW at 2:31 to complain about water? A. Yes.... Q. You put the chart together.

And that was a call that you’re swearing here was to HBW to complain about water. A. Yes. Q. Okay, and then in response to that, somehow Mr. Ireland comes down. A. Correct.

Q. Okay, so let’s look at Defendants’ Exhibit 35. Q. Defendants’ Exhibit 35 is your phone bills, right? A. That’s correct.... Q. And your chart which was admitted as Defendants’ Exhibit 22 is reflective of the calls from that phone bill, right?

A.....[Y]es. Q. Okay, but you didn’t call HBW at all on June 27th, did you? Q. There’s a total of two calls on the 27th, right? A. Correct.

Q. Not either one of them is to the HBW office, right? A. That’s correct. Q. So this chart is wrong, correct? A. On the 27th, yes, that’s correct.

Q. Everything you testified to on Thursday about this series of phone calls is not true, right? A. That is not correct. ³⁷⁷ Q. Okay, did you call HBW office on June 27th? A. No, T did not. Q. Okay, so everything you testified about how you called them and then Mr. Ireland came down an hour and 17 minutes later is not accurate.

A. That’s correct. Appellant testified, nevertheless, that he first met Mr. Ireland on June 27, 2008, when Mr. Ireland “just showed up out of the blue,” presumably, according to appellant, because of all of his complaints to HBW about the leaking water. When confronted with his affidavit, where he testified that he had visited the tenant upstairs, Biocon, after he and his wife had become ill after visiting the premises, and that he had first met Mr. Ireland at that time, appellant agreed that the statements were inconsistent. With regard to the CAT scan appellant underwent after experiencing headaches from visiting the premises, appellant testified at trial that had occurred in January of 2009, following the initiation of Loflane’s suit for unpaid rents in December of 2008.

He agreed that he had not had a CAT scan done in July, August, September, October, November, or December of 2008. When confronted with his deposition testimony wherein appellant had testified that he had a CAT scan done in June, July, August, or September of 2008, appellant agreed that was not accurate. Appellant agreed that he did not have any knowledge of a leak occurring in the Biocon premises on September 8, 2008. He agreed that he had delivered a rent check to Ms. Senall on that date, and that she did not mention a leak.

He also agreed that after delivering the check, he went to Florida and did not return until September 14. Counsel again confronted appellant with his affidavit, where he swore that a “major leak” occurred on September 8, and that he had called HBW to complain. When confronted, appellant stated that he had been “mistaken as far as the time line,” when he executed the affidavit, and that his trial testimony was true. ³⁷⁸ Appellant agreed that he was sued for possession of the premises, and attended a hearing in November. He agreed that he had told the jury that, at that time, he did not know that he had to return his keys in order to surrender the premises.

He agreed that he had previously testified at trial that he had learned that he needed to surrender his keys one day prior to his doing so, November 24, 2008, which was two weeks after the possession hearing. Counsel then confronted appellant with his affidavit in which he stated that he was informed by an attorney, at the November 12 hearing, that if he turned over the keys he would not need an attorney, and that he promptly turned over the keys. Appellant agreed that the testimony he had given before the jury was not true. At the conclusion of cross-examination, the court recessed.

On its own initiative, the court determined appellant to be in direct criminal contempt of court, stating the following: All right, we’re going to begin our ... redirect of the testimony in just a moment. I have a preliminary matter I need to deal with and that deals with the testimony of the defendant in this case. In 28 years of having tried cases and presided over cases, I can only think of one other occasion where a witness made so many false statements under oath, either prior to a hearing or during a hearing. In this case, the defendant has given false sworn testimony in court, in prior depositions, in prior sworn affidavits in an attempt to mislead the jury and to perpetrate a fraud on this [c]ourt.

By his conduct, he has shown contempt and his disregard for this [cjourt, this jury, this judicial system and process and has intentionally attempted to interfere with the administration of justice. This is not going to be tolerated by this [cjourt. Consequently, I am finding Mr. Espinosa in direct criminal contempt of this [c]ourt and I’m going to defer sentencing of this matter until the end of today’s hearing. Subsequently, appellant re-took the stand, and testified on redirect followed by recross-examination.

At the conclusion of ³⁷⁹ the evidence, the court heard motions, including Loflane’s motion for judgment, as well as a motion for sanctions. The court granted Loflanes’ motion for judgment as to appellant’s counter-claims for breach of quiet enjoyment and constructive eviction, which apparently carried with it an element of sanction. In doing so, the court stated: ... LT]he level of inaccuracy and false testimony given in this case is shocking; it is outrageous, to use a word that was previously used in this case; and completely inexcusable.

And at this point, it leaves the record in such a state that it would be impossible for the jury to conclude when this person is telling the truth, and when he’s not telling the truth; what to believe, and what not to believe. He’s admitted on the stand multiple times that he didn’t tell the truth in court, under oath; didn’t tell the truth on, in prior documents when under oath. And so he doesn’t really present himself as a person who understands the meaning of an oath, or the obligation to tell the truth, or the consequences of that, given the multiple times that’s occurred in this case. The court then revisited the contempt issue, and the following transpired.

APPELLANT’S COUNSEL: ... I am not a criminal lawyer— —and I do not feel that I am in a position adequately to represent Mr. Espinosa in such matters. My request is that an opportunity be provided for criminal counsel to be retained, and for the hearing for any sanction to be withheld and stayed.... THE COURT: Okay.

Well, at this point, this is a direct criminal contempt finding for actions that occurred in court, in front of my eyes. This is not a charge that we’re going to have a trial on. There’s already been a finding. And the only issue at this point is to give Mr. Espinosa the opportunity to say anything he’d like to say in mitigation, or you, on ³⁸⁰ his behalf, before I decide what to do about it in the next several minutes.

So if you’re not representing him on this, I’ll ask Mr. Espinosa what he has to say for himself about this issue. MR. ESPINOSA: I do take the oath in court very seriously. Unfortunately, I did not have the opportunity to have some of the items in front of me when I did do my deposition.

After we put the time line together, I did have a clearer understanding of the case and what had happened. And the, like I said, it was two years prior almost. And as we went through the time line, it refreshed my recollection to a more clearer state. There was never any intent on my behalf to misrepresent anything that was going on in the case to ... the [c]ourt, or to the plaintiff.

And to be in this position after my tenure of what I’ve been doing for the last 22-plus years, is causing me a great deal of pain.... THE COURT: Do you understand the difference between giving an answer, “I don’t know” or “I don’t recall,” and making affirmative statements to the jury that this is a fact? MR. ESPINOSA: I do, yes, at this point.

And I was under the impression when I said, “I don’t know,” that I was going to get some sort of recollection at that point. THE COURT: There were so many numerous times in your testimony where you testified, “This is what happened. This is what I did. This is who I called.

This is what they did.” And you were presented with documentary sworn testimony directly to the contrary. It gives me the impression that either you absolutely don’t care about the truth, or you were completely lying. One of those two is the inescapable conclusion from what you did. Because there was ample documentation of your sworn testimony all over the place in this case where you gave prior statements.

And when you came to court, you gave ³⁸¹ completely contrary testimony, either lying to deceive the jury, or with total disregard to having given completely contrary information previously, under oath. MR. ESPINOSA: I was ill prepared by, I did not get an opportunity to read my deposition recently. So when 1 was answering the questions, they were to the best of my knowledge at that time, Your Honor.

And I was not trying to lie or deceive to anybody in the courtroom based on my testimony.... The court then announced its disposition: ____I’ve been sitting in court for 28 years as a lawyer and a judge, watching witnesses, observing what they say, how they say it. And what you did here today is probably the second-worst case of demonstrable, provable, false testimony that I’ve ever seen. There was one that was more egregious that was equally as provable.

Most time, stories that you hear from witnesses, they don’t sound right, doesn’t make any sense, but there’s not enough evidence to prove the false statements. I would say this is the second-worst case I’ve ever seen of provable, demonstrable false testimony, either in court or in prior affidavits, or in prior answers to interrogatories. I guess the thing that is most offensive to the [cjourt is the fact that you’re a sworn law enforcement officer that should understand the implications of ... taking an oath, and that people rely on, juries rely on it, courts rely on it, witnesses rely on it, our general public relies upon it. And to make the statements that you have made in this court that are either absolutely intentionally lies, or in complete disregard for the truth to meet your own needs in this case, in my view, is just outrageous.

So at this point, for having found you in direct criminal contempt of court, I’m going to impose a sanction of 10 days to the Montgomery County Detention Center. ³⁸² I will tell you that based upon your comments here today, you have saved yourself a significant amount of time, because when we came out earlier, I was going to give you a significantly longer sentence. The following day, the court revisited Loflane’s motion for sanctions. The court imposed various evidentiary sanctions relevant to Loflane’s claims, including a ruling that appellant’s testimony, which was “inherently unreliable and legally insufficient,” and various exhibits that were supported by his testimony, were not to be considered by the jury. The jury was so instructed.

After the case was submitted to the jury and after deliberations, the jury returned a verdict, finding that NIVD breached the lease, but used reasonable efforts to mitigate the damages, and that appellant breached the guarantee. The jury awarded damages in the amount of $43,228.84 against NIVD and $135,989.09 against appellant. On June 25, 2010, appellant filed a petition to reconsider the finding of criminal contempt. In his petition, appellant argued that the court did not make any written findings either before or promptly after sanctions were imposed as is required by Maryland Rule 15-203(b), and that the court could not have summarily imposed sanctions on appellant pursuant to Maryland Rule 15-203(a), because the contempt committed by appellant did not interrupt the order of the court or interfere with the dignified conduct of the court’s business.

Appellant also argued that his right to counsel and due process rights were violated. A hearing was held on the same day, with appellant’s newly-acquired criminal counsel appearing on his behalf. Prior to the hearing, the court issued its written order of direct criminal contempt. In