This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Dr. Ba Lam,





County of Ramsey, Minnesota, et al.,




Filed August 15, 2006

Affirmed; motion granted in part, denied in part

Lansing, Judge



Ramsey County District Court

File No. C2-02-9271



Alfred Stanbury, Stanbury Law Firm P.A., 2209 St. Anthony Parkway, Minneapolis, MN 55418 (for appellant)


Susan Gaertner, Ramsey County Attorney, David F. MacMillan, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102  (for respondents)



            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Parker, Judge.*


U N P U B L I S H E D   O P I N I O N



The district court denied Ba Lam’s motion to enforce a settlement agreement through exercise of the district court’s constructive civil-contempt powers, and Lam appeals.  Because the allegations of breach do not constitute disobedience of any lawful judgment, order, or process of the court, we affirm.


            Ba Lam and Ramsey County have been engaged in a dispute since 2001 over the drainage of surface water from a road adjacent to Lam’s property on Lake Johanna Boulevard in Arden Hills.  Lam sued Ramsey County and several employees of the county’s public works department, alleging trespass, nuisance, mental anguish, inverse condemnation, and racial discrimination.  After three years of litigation, during which some claims and counterclaims were decided on summary judgment, Lam and Ramsey County executed and filed a settlement agreement in April 2005.  On the basis of the settlement agreement, Lam and Ramsey County stipulated to dismissal of the litigation, and the district court entered a judgment of dismissal.

Under the terms of the settlement agreement, the county stipulated that it would construct a new drainage system to reroute the surface water, extend a curb abutting Lam’s property, and place a new catchbasinon the paved portion of the road.  The county further agreed to complete the work by October 31, 2005, and to pay Lam $2,100.  The county completed the new system on November 8.  The curb was not extended, however, and the new catch basin was installed on the unpaved portion of the road.

Lam filed a motion requesting the district court to issue an order requiring the county to show cause why it should not be held in contempt for breach of the settlement agreement.  At the motion hearing, the district court, on the record, denied Lam’s motion for constructive civil contempt, concluding that Lam had not presented evidence of deliberate disregard of a court order.  Lam appeals and also moves to strike two statements from the county’s appellate brief.



            Under Minnesota law, a court may hold a person in contempt for disobedience of any lawful judgment, order, or process of the court.  Minn. Stat. § 588.01, subd. 3(3)(2004).  Contempt is constructive when the contemner’s acts occur outside the court’s immediate presence.  Id. § 588.01, subd. 3 (2004).  Beforethe court may find a person in contempt, contempt proceedings must be initiated by an order to show cause served on the alleged contemner.  Minn. R. Gen. Pract. 309.01(a).  The district court has broad discretion to exercise its contempt powers, but contempt is appropriate only when a party has acted “contumaciously, in bad faith, and out of disrespect for the judicial process.”  Minn. State Bar Ass’n v. Divorce Assistance Ass’n, Inc., 311 Minn. 276, 284, 248 N.W.2d 733, 740 (1976).  We review a district court’s contempt decision for an abuse of discretion.  Mower County Human Servs. v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996).

            Because the primary purpose of the court’s contempt power is to provide a court with the means to enforce its orders, the exercise of civil-contempt power is conditioned on the existence of an underlying order or judgment that clearly defines the acts that the court seeks to enforce.  See Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986) (stating purpose of court’s contempt power); Mr. Steak v. Sandquist Steaks, Inc., 309 Minn. 408, 411, 245 N.W.2d 837, 838 (1976) (stating prerequisites for exercising contempt power). 

The Minnesota Supreme Court has specifically determined that a court order that merely acknowledges with approval that a plaintiff and a defendant have settled their pending lawsuit is not a sufficient basis for the plaintiff to seek civil-contempt remedies for the defendant’s violation of the settlement agreement.  Mr. Steak,309 Minn. at 410, 245 N.W.2d at 838.  In concluding that the order approving the settlement in Mr. Steak did not provide a basis for a contempt procedure, the supreme court noted that the order did not enjoin the parties from violating the settlement agreement, did not order either party to perform a specific act, and did not incorporate any references to the executory terms of the agreement.  Id. at 410, 245 N.W.2d at 838.  The supreme court also observed that the district court neither participated in the settlement negotiations nor undertook an analysis of whether the agreement was fair and in the public interest.  Id. 

            The facts of this case parallel those in Mr. Steak.  Lam and Ramsey County signed a written stipulation to dismiss Lam’s claims and the county’s counterclaims with prejudice because the claims had “been compromised and settled by separate agreement.”  On the basis of this stipulation, the district court “ordered that all claims and counterclaims in the above-entitled matter are dismissed with prejudice and on the merits.”  The order dismissing the litigation did not enjoin the parties from violating the agreement, did not include any directives to either party, and acknowledged the signed settlement agreement only by referring to the written stipulation to dismiss, which, in turn, refers to the settlement agreement. 

            Lam argues that the rationale of Mr. Steak does not apply because the district court participated in settlement negotiations between Lam and the county.  But the record does not support this assertion.  Lam and Ramsey County listed the essential terms of the settlement on the record at a pretrial settlement conference and later drafted the agreement for signature.  The agreement specifically states that it is “deemed to have been drafted by the joint efforts of the attorneys representing the parties.”  The partial transcript of the settlement conference confirms that the court made only minimal comments.  The comments do not suggest active participation in settlement negotiations, and, as in Mr. Steak, the court undertook no analysis of whether the agreement was fair or in the public interest.

Specific directives that would provide a basis for a civil-contempt order are not present in the court order that Lam seeks to enforce.  The district court did not abuse its discretion by denying Lam’s motion attempting to enforce the settlement by using constructive civil-contempt procedures.  As the court in Mr. Steak observed, the proper remedy for breach of a settlement agreement is an action in contract, not an order for contempt.  Mr. Steak, 309 Minn. at 410, 245 N.W.2d at 838; see also Theis v. Theis, 271 Minn. 199, 204-05, 135 N.W.2d 740, 744-05 (1965) (noting that settlement agreement is contractual in nature and subject to contractual rules of interpretation and enforcement).


            Lam has moved to strike two statements from the county’s appellate brief.  The record on appeal consists of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings.”  Minn. R. Civ. App. P. 110.01.  The court may not base its decision on matters outside the record and will only consider evidence produced and received in the district court.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).              Lam first moves to strike the county’s statement that the “defendants, through no fault of [their] own, could not construct the basin and underground pipe by the agreed-upon date.”  The county’s argument, however, is fairly supported by the record.  The county specifically stated at the hearing on the motion to show cause that the delay was caused by the inability to obtain the necessary permits from the watershed district to reroute the drainage of the surface water.  The district court orally stated that it saw no intentional disregard of the settlement agreement by the county.

Lam’s second challenge is to the county’s characterization of the district court’s limited participation in reaching the settlement.  The partial transcript of the pretrial settlement conference does not extend to conversations between the parties and district court before the agreement was read on the record.  Consequently, the county’s statements could pertain to matters outside the record on appeal.  We note, however, that the county provides this account in response to a similarly unsupported statement in Lam’s brief.  Lam states that before the agreement was put on the record, “the parties’ attorneys reached an agreement to settle in the judge’s chambers with the judge participating in the negotiations.”  If the district court made participatory statements, Lam, as appellant, has the duty to provide a record of these statements if he intends to have them considered on appeal.  See Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995) (stating that appellant bears burden of providing adequate record).  Nonetheless, we agree with Lam’s contention that the county’s reference to a discussion that may have preceded the text of the partial transcript would be outside the record.  Because we do “not consider matters outside the record on appeal,” we will “strike references to such matters from the parties’ briefs.”  Stageberg v. Stageberg, 695 N.W.2d 609, 613 (Minn. App. 2005), review denied (Minn. Jul. 19, 2005).  We therefore grant Lam’s motion to strike the unsupported reference in the county’s brief.

Affirmed; motion granted in part, denied in part.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.