Opinion
No. 52880-7-I
Filed: May 2, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 01-3-00054-5. Judgment or order under review. Date filed: 08/11/2003. Judge signing: Hon. Joseph a Thibodeau.
Counsel for Appellant(s), Viveca Sanai (Appearing Pro Se), 8711 Talbot Road, Edmonds, WA 98026.
Counsel for Respondent(s), William Richard II Sullivan, Marsh Mundorf Pratt ET AL, 16504 9th Ave SE Ste 203, Mill Creek, WA 98012-6388.
Viveca Sanai appeals another adverse decision in her ongoing efforts to avoid or delay the requirements of a final and valid decree of dissolution. Despite repeated rulings rejecting her challenges and ordering her to refrain from actions adversely affecting a property sale authorized by the decree, she has continued her attempts to obstruct the sale and has now been found in contempt. Viveca appeals the order of contempt and the court's release of her lis pendens on the subject property. We affirm and award attorney's fees to respondent Sassan Sanai.
FACTS
The parties divorced in 2002. The decree, which was entered in Snohomish County superior court, authorized the Sanais' accountant to sell the family residence and a vacant lot and distribute the proceeds. Viveca appealed.
While the appeal was pending, the accountant received a full price offer for the vacant lot. Viveca then repeatedly attempted to prevent the sale of the lot. She issued her own 'Notice of Stay' and notified the accountant that he had been relieved of responsibilities under the decree and was not to act on any offers until the conclusion of the appeal. The trial court found that Viveca's conduct 'was intended to unduly delay frustrate the court's rulings' and ordered her to post a $50,000 bond 'or the sale of the lot shall close immediately.'
Dorothy Tuson, a non-party, then filed a supersedeas bond. The bond was insufficient on its face. Tuson stated that she had 'separate property located in the State of Washington' and $20,000 in a bank account but provided no description of the assets or her liabilities. The trial court then ordered Viveca to post 'a cash or commercial security bond of $50,000 by 5:00 p.m. on July 2, 2002, or the stay of the sale of the lot shall be lifted.' Instead of posting a bond, Viveca filed a lis pendens on the lot. On September 27, 2002, the trial court ordered Viveca to do the following:
1. Petitioner is hereby ordered to immediately strike and withdraw and/or release her lis pendens, unless [the] Court of Appeals issues a stay.
2. Petitioner and/or her counsel shall be prohibited from filing another notice of lis pendens in this lawsuit relating to the undeveloped lot.
3. Petitioner and/or her counsel shall be prohibited from taking any further action to delay or obstruct the sale of the vacant lot.
4. The sale of the vacant lot shall close within 10 days.
5. All proceeds netting from the sale . . . shall be deposited with the [accountant who] shall pay only those debts ordered paid in the Decree of Dissolution and shall hold all other proceeds pending further court order.
Clerk's Papers (CP) at 563-564.
This court did not issue a stay.
Viveca then filed a lis pendens against the lot in her sons' names. A federal district court judge struck that lis pendens and prohibited Viveca and her sons from 'filing any new Notice of Lis Pendens affecting the vacant lot [.]' The order further directed them to 'cease and desist from taking any further action whatsoever to delay or obstruct the sale of the aforesaid real property.'
CP 328.
Id.
Despite this ruling, the Sanais' again attempted to thwart a pending sale of the property by filing a quiet title action in King County Superior Court and a notice of the lis pendens in Snohomish County Superior Court. Sassan immediately filed a 'Motion for Contempt and Disbursement of Sale Proceeds' in Snohomish County Superior Court.
CP 427-29.
On August 11, 2003, the Snohomish County Superior Court found Viveca in contempt 'for her conduct in continuing to obstruct, hinder, and delay the sale of the vacant lot and specifically by recording a lis pendens in Snohomish County [.]' The court released the lis pendens, ordered Viveca to pay Sassan $5,000 in terms and sanctions, and reserved a sanction of five days in jail so long as Viveca refrained from further actions to block the sale of the lot. The pending sale on the vacant lot subsequently closed and a majority of the proceeds were disbursed.
CP 549.
On December 22, 2003, this court affirmed the underlying dissolution decree and awarded Sassan $10,000 in attorney's fees for Viveca's 'extreme intransigence.' We stated:
We impose sanctions under RAP 18.9 because Viveca has used the appellate process to cause delay and expense to Sassan. . . . Viveca brought numerous motions before this court that were inappropriate, untimely, and unduly repetitive. For example, when the trial court ordered her to post a bond in lieu of selling the family property, she instead filed a lis pendens against the property. After the trial court ordered that she remove the lis pendens, she appealed the order here. The commissioner denied her appeal, and she moved for reconsideration. After the trial court finally ordered her to remove the lis pendens, she recorded a lis pendens on the property in her two sons' names.
(Emphasis added) Sanai v. Sanai, noted at 119 Wn. App. 1053, slip op. at 14 (2003).
Viveca now appeals the superior court's August 11, 2003 order finding her in contempt and releasing her latest lis pendens.
Sassan contends the August 11th order is not appealable. However, Viveca correctly points out that contempt orders generally are appealable. See Seattle Northwest v. SDG Holding Co., 61 Wn. App. 725, 812 P.2d 488 (1991). We assume without deciding that the order is appealable.
DECISION
Viveca first contends the Snohomish County Superior court lacked authority to cancel her latest lis pendens. Citing RCW 4.28.320, she argues that the court exceeded its authority because the statute authorizes cancellation of a lis pendens only by the court in which the underlying action is filed, and only after the underlying action is complete. Since her action was filed in King County and was still active when the Snohomish County Superior Court issued its order, she contends the court's order is void. We disagree for several reasons.
RCW 4.28.320 provides in pertinent part that 'At any time after an action affecting title to real property has been commenced, . . . the plaintiff . . . may file with the auditor of each county in which the property is situated a notice of the pendency of the action, containing the names of the parties, the object of the action, and a description of the real property in that county affected thereby. . . . And the court in which the said action was commenced may, at its discretion, at any time after the action shall be settled, discontinued or abated, on application of any person aggrieved and on good cause shown . . . order the notice authorized in this section to be canceled of record, in whole or in part, by the county auditor of any county in whose office the same may have been filed or recorded. . . .'
First, the statute does not state that only the court hearing the underlying action has the power to cancel a notice of lis pendens, and Viveca cites no authority so holding. Second, Viveca's action in King County was not 'an action affecting title to real property' because it was filed in the wrong county and could have no affect on real property situated solely in Snohomish County.
See RCW 4.12.010 (requiring that partition actions and actions affecting title to real property be filed 'in the county in which the subject of the action . . . is situated.'). We note that shortly after the Snohomish County court released the lis pendens, the King County Superior Court granted a motion to change the venue of the action underlying the lis pendens to Snohomish County.
Third, Viveca's analysis overlooks the fact that the Snohomish County Superior Court had prohibited her from 'taking any further action to delay or obstruct the sale of the vacant lot,' and the federal district court had expressly prohibited the Sanais from filing another lis pendens on the vacant lot. The superior court has inherent power to enforce its own orders. Viveca cites no authority supporting the proposition that RCW 4.28.320 precludes the exercise of those powers.
Keller v. Keller, 52 Wn.2d 84, 88, 323 P.2d 231 (1958) (the power to enforce judgments and punish disobedience is inherent in a constitutional court and the legislature may not pass laws that curtail the court's exercise of that power); Graves v. Duerden, 51 Wn. App. 642, 754 P.2d 1027 (1988).
Viveca's contention that the superior court's inherent powers were somehow limited by the fact that it was 'sitting as a divorce court' is specious. All courts, whether they are sitting in divorce proceedings or some other statutorily defined setting, must, at the very least, have the power to enforce their own orders. See Keller v. Keller, 52 Wn.2d at 88.
Next, Viveca asks us to revisit a March 11, 2003 decision in which we denied review of a post-dissolution order denying her request for a new trial under CR 60(b), and an order disqualifying Frederic Sanai from acting as an attorney in the proceedings. She contends this court erred in concluding that those matters were not appealable and/or not appropriate for discretionary review. Our decision in that cause became final after the State Supreme Court denied Viveca's motion for discretionary review and the mandate issued. Her challenge to our prior decision is therefore foreclosed.
In his ruling denying review in the State Supreme Court, Commissioner Crooks noted that there were 'ample reasons for disqualifying Frederic,' including the fact that 'he was a witness and because he had a conflict of interest.' CP at 454.
Viveca also argues that the prior ruling denying her CR 60(b) motion for a new trial is reviewable in the current appeal under RAP 2.4(b). That rule provides in pertinent part that this court will review an order not designated in a notice of appeal if it 'prejudicially affects the decision designated in the notice.' The decision appealed here is the order declaring contempt and releasing the lis pendens. Viveca devotes one sentence to the application of RAP 2.4(b) to these facts:
Viveca has not argued that the superior court's ruling disqualifying Frederic is properly before this court under RAP 2.4(b).
This Court's denial of review of my CR 60(b) motion on March 11, 2003, may also be reviewed under RAP 2.4(b), as the denial of that appeal was prejudicial to me and led to my filing of the King County action as an alternative means of attacking the trial court's judgment based, inter alia, on Respondent's violation of his fiduciary duty of disclosure.
Appellant's Amended Opening Brief at 14.
This does not demonstrate that the denial of her new trial motion prejudicially affected the court's subsequent contempt and lis pendens rulings. Rather, Viveca's argument only demonstrates that it was her own decision to file the King County action and accompanying lis pendens that prejudicially affected the orders challenged here, not the denial of the motion for a new trial. Moreover, Viveca does not explain how the motion for a new trial can prejudicially affect contempt proceedings given the collateral bar rule. Under that rule, a court order cannot be collaterally attacked in contempt proceedings, since a contempt judgment will normally stand even if the order violated was erroneous or was later ruled invalid. Viveca next argues that the three judges who decided her direct appeal from the dissolution decree must be recused from hearing the instant appeal because one of them violated the appearance of fairness doctrine. But this court already denied her motion in this appeal to recuse those judges. Finally, Viveca challenges this court's decision in her prior appeal from the dissolution. She contends Judge Baker's participation in that appeal violated the appearance of fairness doctrine and therefore certain holdings in the decision must be reversed. The remedy for these perceived problems with our decision was to file a petition for review with the State Supreme Court. Viveca filed a petition, but the Supreme Court denied it. We then issued the mandate in the appeal.
State v. Noah, 103 Wn. App. 29, 46, 9 P.3d 858 (2000) (citing In re Detention of Broer, 93 Wn. App. 852, 858, 957 P.2d 281 (1998).
Nevertheless, the issue is moot because those judges are not on the panel hearing this appeal.
Sassan requests of attorney's fees on appeal, arguing that Viveca's appeal is frivolous and was brought solely for purposes of delay. See RAP 18.9(a). Alternatively, he requests fees on the ground that this appeal demonstrates her continued intransigence. Fees are warranted on both grounds. Sassan is awarded attorney's fees subject to his compliance with RAP 18.1(d).
In re Marriage of Mattson, 95 Wn.App. 592, 605, 976 P.2d 157 (1999).
Affirmed.
SCHINDLER, KENNEDY, and COLEMAN, JJ., Concur.