Opinion
No. 60329-9-I.
November 3, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-31891-1, Glenna Hall, J., entered July 12, 2007.
Dismissed by unpublished opinion per Appelwick, J., concurred in by Lau and Leach, JJ.
UNPUBLISHED OPINION.
Jason Foshee entered into a Settlement Agreement with his neighbors Clint and Joanie McCann to build a fence between the properties. He challenges several orders enforcing the Settlement Agreement. Because the parties stipulated to dismissal with prejudice of all claims and counterclaims in the litigation, the contempt order was purged, and the bench warrant quashed, we find the claimed errors moot. No issues of continuing and substantial public interest are presented. We dismiss the appeal as moot.
FACTS
Foshee and the McCanns were neighbors in Kirkland, Washington. The McCanns bought their home in 1994. On July 4, 2005, Foshee constructed a chain link fence, which the McCanns alleged encroached on their property. The McCanns filed a complaint in King County Superior Court seeking an order to remove the fence. Prior to trial, the McCanns and Foshee entered into a Settlement Agreement, dated March 21, 2007. The Settlement Agreement stipulated that the parties would share equally in the cost of building a six foot fence on the property line between the properties. It authorized All City Fence to remove the existing fence and build a new one.
On May 4, 2007, the McCanns successfully obtained a bid for the work from All City Fence. A contract was e-mailed to Foshee from All City Fence for his approval. On May 18, 2007, the McCanns informed Foshee that All City Fence would start work on the fence the following Monday, May 21, 2007. They also requested that he sign the contract for payment of half of the cost of the fence, pursuant to the Settlement Agreement. On the afternoon of May 18, 2007, Foshee called All City Fence three or four times "threatening to call the police if they come to the property to do the fence work." Because of these threats, All City Fence was unwilling to build the fence.
On May 22, 2007, the McCanns sought judicial enforcement of the Settlement Agreement. On June 8, 2007, the trial court entered an order granting plaintiff's motion to enforce the Settlement Agreement. The court stated that it reviewed, but did not consider Foshee's response, because it was untimely. It noted that "even if the response had been timely, it is not persuasive and contains substantial inadmissible material." The order required Foshee to pay one-half of the fence, as bid by The Fence Connection, and prohibited Foshee's interference with the construction of the fence. It also ordered Foshee to pay $1,750 for attorney fees by June 8, 2007. Foshee failed to pay the attorney fees and his half of the cost of the fence. The McCanns filed a motion to find Foshee in contempt of the trial court's June 8, 2007, order. The trial court granted this motion, issued a bench warrant, and awarded additional fees.
On June 12, 2007, the McCanns sought an order amending the June 8, 2007 order enforcing the Settlement Agreement. They also sought $412.50 in attorney fees for bringing the motion. That same day, the McCanns filed a motion for an order to shorten time for hearing their motion to amend the order enforcing the Settlement Agreement. The trial court granted both motions. Foshee filed several motions for reconsideration. On July 5, 2007, the trial court denied Foshee's motion to reconsider its June 8, 2007 order. It ordered Foshee to pay an additional $550.00 in attorney fees, because the McCanns had to answer his reconsideration motions.
On July 24, 2007, the McCanns and Foshee signed and filed an agreed order purging the contempt order and quashing the bench warrant in King County Superior Court. .
From July 20-22, 2007, a fence was constructed between the two properties. The record shows that Foshee paid the McCanns $2,025, his portion of the cost of building the fence. The record also indicates Foshee paid attorney fees in the amount of $2,025, which constituted payment in full.
On August 31, 2007, the McCanns and Foshee entered into a stipulation to "the dismissal of all claims and counter-claims in this litigation with prejudice and without costs to any party."
DISCUSSION
Foshee appeals orders relating to enforcement of the Settlement Agreement. He also claims errors regarding the trial court's failure to rule on some of his motions. Foshee does not challenge the validity of the Settlement Agreement.
"A case is moot if a court can no longer provide effective relief."Orwick v. City of Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984). The issue of mootness "is directed at the jurisdiction of the court."Citizens for Financially Responsible Gov't v. City of Spokane, 99 Wn.2d 339, 350, 662 P.2d 845 (1983). An appellate court has the "`power to decide a moot case to resolve issues of continuing and substantial public interest if guidance would be helpful to public officers and the issue is likely to recur.'" State v. Peterson, 145 Wn. App. 672, 675,186 P.3d 1179 (2008) (quoting In re Pers Restraint of Dalluge, 162 Wn.2d 814, 819 — 20, 177 P.3d 675 (2008) (internal quotation marks omitted).
Here, the parties entered into a stipulated "dismissal of all claims and counter-claims in this litigation with prejudice and without costs to any party." This stipulation was entered under the same King County Superior Court number as the orders appealed by Foshee. The stipulated dismissal contained no reservation of rights or claims pertaining to this appeal. No claims or justiciable controversies remain between the parties. Additionally, the contempt order was purged and the bench warrant quashed. The issues on appeal are moot. No issues of continuing and substantial public interest are presented.
Foshee pursued this appeal, even after entering into a stipulated dismissal. The Settlement Agreement provides that the prevailing party in any litigation arising out of the agreement be awarded attorneys fees, expenses, and costs. As the McCanns are the prevailing party, we award them fees on appeal.
We dismiss the appeal.