Opinion
No. 62478-4-I.
May 4, 2009.
Appeal from a judgment of the Superior Court for King County, No. 08-2-27259-1, Sharon S. Armstrong, J., entered October 1, 2008.
Affirmed by unpublished opinion per Schindler, C.J., concurred in by Grosse and Lau, JJ.
UNPUBLISHED OPINION
Yolanda DeLay appeals an anti-harassment protection order against DeLay, ordering DeLay not to come within 25 feet of Glayde Larsen at his residence or in Jornada Park. Because the evidence is sufficient to support the court's decision to impose the order, we affirm.
In 2003, the City of Auburn developed plans to landscape Jornada Park. The city park committee provided the Jornada homeowner's association with the plans, which included a portable toilet and boundary fences around the park. The homeowner's association approved the plans. At that time, Glayde Larsen was president of the homeowner's association and became the contact person for the park improvements.
Yolanda DeLay and her spouse own a house on property abutting Jornada Park. In September or October 2007, DeLay went to Larsen's house to complain about the proximity of the Jornada Park portable toilet to her property. Larsen said that DeLay "started yelling at me, telling me they had a considerable amount of money invested in this landscaping, and that the port-a-potty detracted from their landscaping." Larsen said that he tried to explain to DeLay that the portable toilet had been part of the park plans, and there would be an enclosure around it, but "the more I tried to reason with her, the more agitated she became." Larsen said that DeLay "left in a huff."
Almost a year later, on August 7, 2008, at approximately 5:15 p.m., DeLay went to Larsen's house again. Larsen said that DeLay "immediately began yelling at me, telling me I was harassing her and her husband." DeLay accused Larsen of sending an email to the City, asking for a boundary fence between DeLay's property and the park. Larsen testified that after he told DeLay that he had not sent any emails since February,
Her voice level became even louder. She yelled at me and started calling me a liar. She then asked if I was a Mormon. I said, yes. I was a member of the Church of Jesus Christ of Latter-Day Saints. She said then I was a terrible Mormon, tried to make additional inflammatory remarks in that area, mocking me and my religion.
Larsen said that DeLay raised her arms with her fists clenched, continued to make inflammatory remarks, and said that Larsen was "going to be sorry." Larsen stated that when it became clear that he was not going to be able to reason with DeLay, he closed the door. Larsen said that he was "terribly upset about what had happened," but did not plan to take legal action against DeLay.
On August 12, Larsen's son Matthew said that he had been involved in a confrontation with DeLay in Jornada Park and was filing for a restraining order against DeLay. Later that day, Larsen filed a petition for an order of protection against DeLay. In the petition, Larsen stated that DeLay came to his house in October 2007 and again on August 11, 2008 and verbally harassed him. Larsen specifically alleged that on those dates, DeLay yelled at him, called him names, made threatening remarks, and attacked his religious beliefs. On August 12, the court issued a temporary protection order and set a hearing for August 25.
Matthew Larsen later withdrew his petition for an order of protection against DeLay.
At the August 25 hearing, Larsen testified in detail about DeLay's behavior and said, "I felt violated in the sanctity of my home." DeLay testified that she had only met Larsen twice, and had only visited Larsen's house once, on August 11. DeLay said that she went to talk to Larsen because she believed he was responsible for putting the fence between her property and the park. DeLay admitted that she "did make a statement" about Larsen's religion, but she denied physically threatening him, making a fist, or making any threatening gestures. DeLay also stated that when she went to Larsen's house on August 11, "I said that he was absolutely lying, yes."
In response, Larsen testified that he and DeLay had attended multiple board meetings, he had been to her house twice when he was trying to get a petition signed, and she gave him some blocks for his landscaping.
The court found that approaching Larsen at his house was "beyond a legitimate property interest" and the order was necessary to prevent DeLay from going to Larsen's house and confronting him. The court entered an anti-harassment order for protection against DeLay, ordering DeLay not to come within 25 feet of Larsen at his residence or in Jornada Park. However, the court stated that DeLay could attend board meetings at Larsen's home and come within 25 feet of him in Jornada Park during homeowner association functions. The court denied DeLay's motion for reconsideration. DeLay appeals.
DeLay first contends that because the trial court did not make specific findings of fact regarding disputed facts in the record, we should review the findings de novo. We disagree.
At a hearing on a petitioner for an anti-harassment order, "if the court finds by a preponderance of the evidence that unlawful harassment exists, a civil anti-harassment protection order shall issue prohibiting such unlawful harassment." RCW 10.14.080(3). Under RCW 10.14.050, the administrator for the courts shall develop model forms. See also RCW 10.14.040(3) ("All court clerks' offices shall make available simplified forms and instructional brochures.")
Here, the court used a form for "Order for Protection — AH" and found, "Based upon the petition, testimony, and case record, the court finds that the respondent committed unlawful harassment, as defined in RCW 10.14.080, and was not acting pursuant to any statutory authority." The court then concluded, "Respondent is RESTRAINED from entering or being within 25 ft (distance) of petitioner's residence [and] petitioner while in Jornada Park."
DeLay asserts that the evidence is insufficient to support the finding that she unlawfully harassed Larsen. When the trial court has weighed the evidence, we determine whether the findings are supported by substantial evidence. Standing Rock Homeowners Ass'n v. Misich, 106 Wn. App. 231, 242-43, 23 P.3d 520 (2001). "Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding." State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). We review conclusions of law de novo to determine whether they are supported by the findings of fact. Bingham v. Lechner, 111 Wn. App. 118, 127, 45 P.3d 562 (2002). In matters of credibility, we defer to the trial court. Standing Rock, 106 Wn. App. at 244.
Unlawful harassment consists of (1) a knowing and wilful (2) course of conduct (3) directed at a specific person, (4) which seriously alarms, annoys, harasses, or is detrimental to that person, and (5) serves no legitimate or lawful purpose. RCW 10.14.020(1); Burchell v. Thibault, 74 Wn. App. 517, 521, 874 P.2d 196 (1994).
DeLay contends that coming to Larsen's house two times does not constitute a continuing course of conduct. RCW 10.14.020(2) defines "course of conduct" as "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." Here, the evidence shows that DeLay went to Larsen's house twice to complain about the work the City was doing in Jornada Park and both times, DeLay yelled at Larsen and accused him of damaging her property. Substantial evidence supports the court's finding that DeLay engaged in a knowing and willful course of conduct by repeatedly going to Larsen's house.
DeLay also asserts that because Larsen did not allege emotional distress, the anti-harassment order was inappropriate. The test for emotional distress is conduct that "would cause a reasonable person to suffer substantial emotional distress" and actually did cause the petitioner "substantial emotional distress." RCW 10.14.020(1); Burchell v. Thibault, 74 Wn. App. 517, 521, 874 P.2d 196 (1994). At the hearing, Larsen testified that DeLay yelled at him, called him a liar, said he was a "terrible Mormon," and shook her fist at him. Larsen also said that he was "terribly upset about what had happened," and he "felt violated in the sanctity of my home." We conclude that the record supports the court's finding of substantial distress.
DeLay contends that substantial evidence does not support the court's finding that her actions did not serve a legitimate purpose, based on the factors in RCW 10.14.030. However, the factors listed in RCW 10.14.030 are factors the court "should consider," not mandatory requirements. Here, the trial court specifically found that DeLay "was not acting pursuant to any statutory authority." In addition, DeLay initiated the contact between the parties, her course of conduct appeared to be designed to harass Larsen, and it created a hostile living environment for Larsen. Substantial evidence supports the trial court's conclusion that DeLay's actions did not serve a legitimate purpose.
In determining whether the course of conduct serves any legitimate or lawful purpose, the court should consider whether:
(1) Any current contact between the parties was initiated by the respondent only or was initiated by both parties;
(2) The respondent has been given clear notice that all further contact with the petitioner is unwanted;
(3) The respondent's course of conduct appears designed to alarm, annoy, or harass the petitioner;
(4) The respondent is acting pursuant to any statutory authority, including but not limited to acts which are reasonably necessary to:
(a) Protect property or liberty interests;
(b) Enforce the law; or
(c) Meet specific statutory duties or requirements;
(5) The respondent's course of conduct has the purpose or effect of unreasonably interfering with the petitioner's privacy or the purpose or effect of creating an intimidating, hostile, or offensive living environment for the petitioner;
(6) Contact by the respondent with the petitioner or the petitioner's family has been limited in any manner by any previous court order.
DeLay relies on Zink v. City of Mesa, 140 Wn. App. 328, 166 P.3d 738 (2007), to argue that because her actions served a legitimate purpose, they cannot be considered harassment. DeLay's reliance is misplaced. In Zink, the petitioner, a city clerk, testified that when Zink requested copies of public records, Zink threatened her. But the clerk also said that the "threats" were "nothing personal" and "admitted she never felt that Ms. Zink was going to harm her physically." Zink, 140 Wn. App. at 343. Based on the testimony in that case, we held that the record did not support a finding of unlawful harassment because "Ms. Zink's conduct toward the city clerk was not directed at Ms. Standridge personally, but instead served the legitimate purpose of achieving lawful disclosure of public documents." Zink, 140 Wn. App. at 343.
By contrast, the court found that DeLay "was not acting pursuant to any statutory authority," that DeLay's actions went "beyond a legitimate property interest." And although the court found that DeLay could go to Larsen's house for homeowner association meetings, the court also found that she did not have a legitimate reason for the two other times she went to his house.
DeLay also contends that because there was no evidence that she had approached Larsen in Jornada Park, the part of the order restraining her from being within 25 feet of Larsen in Jornada Park was arbitrary. We give great weight to the trial court's decision and only interfere if it is "based on untenable grounds, is manifestly unreasonable or is arbitrary." Steury v. Johnson, 90 Wn. App. 401, 405, 957 P.2d 772 (1998). Although there is no evidence in the record about confrontations between DeLay and Larsen in Jornada Park, there was testimony about the confrontation between Larsen's son Matthew and DeLay in Jornada Park. Consequently, we conclude the trial court's decision to restrain DeLay from approaching Larsen in Jornada Park was not arbitrary.
We also agree with Larsen that the fact that he had other means of legal recourse if DeLay came to his home against his will is beyond the scope of this appeal.
Larsen requests attorney fees "pursuant to RAP 18.9(a)." RAP 18.9 gives the court discretion to award attorney fees if a party files a frivolous appeal. "An appeal is only frivolous if no debatable issues are presented upon which reasonable minds might differ, and it is so devoid of merit that no reasonable possibility of reversal exists." State v. Parada, 75 Wn. App. 224, 235, 877 P.2d 231 (1994) (internal quotes omitted). Because DeLay's appeal is not so devoid of merit that no reasonable possibility of reversal exists, we deny Larsen's request for attorney fees.
WE CONCUR: