Opinion
Nos. 25683-5-II, c/w 26497-8-II.
Filed: February 15, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 90-2-06944-9, Hon. Rosanne N. Buckner, February 4, 2000, Judgment or order under review.
Counsel for Appellant(s), John T. Robson Jr., Attorney At Law, 2603 Bridgeport Way W, Ste D, University Pl, WA 98466.
Counsel for Respondent(s), Hugh J. McGavick, Attorney At Law, 3434 Martin Way E Ste a, Olympia, WA 98506.
In this consolidated appeal, Roger and Janet Norbom challenge contempt orders imposing sanctions against them for violating prior court orders. Finding no abuse of discretion, we affirm.
Facts I. Background
The Norboms and Arlene Roberson are neighbors with a common property line and views of Gravelly Lake in Pierce County. The Norboms' property is subject to covenants and restrictions designed to protect Roberson's lake view. Over a decade ago, the Norboms began constructing a three-car garage near the shared property line. In 1990, an injunction halted the construction.
On November 8, 1990, the parties, represented by counsel, agreed to settle their dispute and read their agreement into the record. The Norboms' attorney stated, 'We would like to be very careful, I believe, to recite fully for the record the settlement and also to be very certain that both of our clients clearly understand the terms so that we avoid or minimize any future problems.' Clerk's Papers (CP) at 342. As part of that stipulation, the Norboms offered two exhibits. Exhibit 2 was presented to the court as the 'roof plan designed by Mr. Larry Berry, architect, concerning completion of the garage which is under construction.' CP at 342. The Norboms' attorney added that the agreement was that his clients would be entitled to complete the garage with either a flat or 3/12 pitch roof 'in accordance with the roof plan, Exhibit No. 2, of Larry Berry.' CP at 343.
II. Initial Court Order Restricting Garage Roof Height (1990)
On November 27, 1990, the court entered a stipulated judgment formalizing the parties' November 8 agreement. The order was drafted on paper bearing the name and address of the law firm then representing the Norboms. The order stated that: (1) the parties 'each acknowledged their understanding and acceptance of the terms of the settlement'; CP at 82-83, (2) the Norboms could construct the garage with either a flat or 3/12 pitch roof 'in accordance with the roof plan prepared by HARRY BERRY, architect, admitted as Defendants' Exhibit 2'; CP at 83-84, and (3) the court would retain jurisdiction to enforce all of its terms and provisions. CP at 82-84, 88.
III. Violation of First Court Order; Entry of Second Court Order (1998)
After the stipulated judgment was entered, the Norboms resumed construction and built a nonconforming garage with a second-story apartment on top, as depicted by the pitched roof in the drawing below. CP at 91-92.
CP at 58.
Roberson sued the Norboms. On July 20, 1998, the trial court granted her motion for summary judgment. The court ordered the Norboms (1) to remove the pitched roof they had built on the second-story garage-apartment; and (2) to perform specifically as they had agreed in their stipulated settlement entered on November 8, 1990, and as specified in the stipulation and the order of judgment entered on November 27, 1990. CP at 91. The order added:
It was the agreement of the parties that the height of Defendants' garage with storage area above would be the height it is on Exhibit 2 filed 11/8/90. Defendants are hereby ordered to lower the walls of the garage to the same height those walls are on Exhibit 2 filed 11/8/90. Defendants may then place a roof on those walls, provided they use either of the two roofs referred to in the Exhibit 2 filed 11/8/90 within 6 months of this date.
CP at 92.
The order also declared a three-foot strip of property previously granted to the Norboms to be Roberson's property by adverse possession. CP at 91. The order concluded with a warning to both parties:
The Court hereby explicitly repeats its intention to retain continuing jurisdiction to enforce all the terms and provisions of this Order. The parties are hereby admonished that any future involvement in this property dispute will be closely scrutinized. The Court will not hesitate to impose sanctions against the parties and/or their attorney(s) if it finds that this Order has not been complied with fully.
CP at 93.
III. First Appeal; Third Violation of Court Order
The Norboms appealed the boundary ruling but did not take issue with the trial court's ruling concerning their garage. Nor did they assign error to the court's reference to the architectural drawing identified as Exhibit 2. On December 10, 1998, Roberson filed a motion asking the court to order the Norboms to post a supersedeas bond. CP at 218. In connection with that motion, Roberson presented evidence showing that instead of removing the roof, the Norboms had rented out the garage apartment to one tenant and had rented the main house and grounds to another tenant, with an option to buy the property. CP at 221-24. In advertising their property for sale, the Norboms referred to the living quarters over the garage as a 'nanny's quarters/guest house.' CP at 240.
On December 18, 1998, the trial court ordered the Norboms to post a supersedeas bond to stay enforcement of the July 20, 1998 judgment. CP at 241. The Norboms failed to comply with this order. CP at 250. On January 20, 1999, the six-month grace period granted in the July 20, 1998 order expired.
On February 3, 1999, Roberson sought to force the Norboms to obey the July 20, 1998, order by filing a motion to enforce judgment and to impose sanctions. CP at 243-46. In a responding declaration, Roger Norbom stated that he mistakenly thought the status quo would remain on all areas of dispute between the neighbors until we ruled on his adverse possession appeal. CP at 249. He added that a potential purchaser currently occupied his former residence under a rental agreement. 'I deem it practical that the party purchaser have an input into the ultimate design in the event the roof line must be lowered. I am undertaking discussions to resolve that problem with the potential purchaser.' CP at 250.
On November 5, 1999, we upheld the adverse possession ruling. No. 23655-9-II.
IV. Third Court Order and Sanctions for Continued violations (February, 1999)
On February 12, 1999, the trial court ordered the Norboms to comply with the order of July 20, 1998, and imposed sanctions of $100 per day for every day the Norboms were out of compliance beginning February 16, 1999. CP at 141-42. Such sanctions were to continue until the Norboms filed proof of a satisfaction of judgment or a stipulation of the parties that sanctions were no longer appropriate. The Norboms could also apply to have the order abated upon notice to Roberson and presentation to the court of (1) proof of a permit application to bring the garage roof into compliance and (2) a time schedule for reasonable completion of the roof removal project. In addition to imposing sanctions, the court awarded Roberson attorney fees. CP at 142.
V. Increased Sanctions for Continuing Violations (December 1999 — February 2000)
On December 17, 1999, the trial court heard Roberson's motion for entry of judgment and increased sanctions based on the Norboms' continuing inaction concerning their garage roof. The court also considered Roger Norbom's declaration that he had sketched out a garage design but that the City of Lakewood had declined to issue him a building permit based thereon. He and his attorney then obtained certified copies of the prior orders concerning the garage to submit to the city and discovered for the first time that Exhibit 2 referred to in the court order had not been the exhibits which were utilized by Plaintiff in her quest for the [July 20, 1998] order. . . . It appears from the Exhibit Record that Defendants' Exhibit 2 is actually Defendants' Exhibit 26 . . . I now have obtained certified copies of Defendants' Exhibit 2 (Exhibit 26) which appears to be the appropriate document under which I should proceed for modification of the ancillary building if it is, in fact, not in compliance with that order. CP at 20-21.
During the hearing on the motion, the Norboms' attorney pointed to the confusion over the exhibit, and Roberson's attorney responded as follows:
So they paid to have this plan prepared back in 1990 and presented to the court and argued that this is what they were willing to do. That was the stipulation. That was their bargain. And now they act like they are confused and what they are doing is confusing.
Report of Proceedings (RP) (12-17-99) at 9-10. After stating that it did not understand why Norbom went to the city with his own drawing, the trial court continued Roberson's motion for 30 days to give the Norboms an opportunity to come into compliance and avoid further sanctions. RP (12-17-99) at 10-11. The trial court postponed formal entry of judgment.
But the Norboms continued to advertise their property as including a 'nanny's quarters/guesthouse' from December 22, 1999, through February 15, 2000. CP at 52-53. On January 14, 2000, the Norboms submitted plans to the city showing proposed modifications to their garage that added height to the existing walls and that raised the average height of the roof. See flat-roof extension on drawing, supra.
On February 4, 2000, the trial court heard Roberson's motion for entry of judgment and increased sanctions. The court noted, [I]t appears the Norboms want to raise the roof rather than removing the guest quarters, as they advertise it, over their garage. That would, under these circumstances, show bad faith and justify the requested relief[.] RP (2-4-00) at 10.
When Roberson's attorney suggested that the requested sanctions of $500 per day be made retroactive to catch the Norboms' attention, their attorney stated that their attention had been caught. But the court was not convinced: 'Well, that's not the impression that I have . . . under these circumstances. So yes, they will be retroactive.' RP (2-4-00) at 10.
The trial court entered a judgment of $30,800 for sanctions imposed for the 308-day period from February 12, 1999, through December 17, 1999. It awarded increased sanctions of $500 per day for every day of noncompliance from the December 17, 1999 hearing and order until February 4, 2000. The increased sanctions totaled $24,500. The court further ordered sanctions of $500 per day for every additional day the Norboms remained out of compliance with its orders. The court also awarded attorney fees of $5,303.50, which included the fee award entered on February 12, 1999. CP at 73-74.
The trial court entered a second order on February 4, 2000, entitled 'Order Continuing Motion for Judgment and Increased Sanctions, and Identifying Exhibits.' This order reinforced the Norboms' duty to bring their garage roof and walls into conformance 'with the Berry Berry Associates architectural drawing for job number 9003, dated 10/30/90, entitled 'Norbom garage" and also referred to as 'defendants' trial exhibit 25.' The parties agreed that they had previously referred to this drawing as 'defendants' exhibit 2' and as 'exhibit 2 filed 11/8/90.' CP at 69-70.
VI. Additional Sanctions; Compliance (June 2000)
On June 16, 2000, Roberson sought further sanctions for the period from February 4 through June 16, 2000. The trial court initially refused to hear argument on the issue because no written motion had been filed. At a hearing on July 28, 2000, the court acknowledged that Roberson still had not properly filed her motion but accepted argument on the requested sanctions because the substance of the filing note gave the Norboms adequate notice.
The court found the Norboms in compliance as of the date of the hearing but awarded Roberson sanctions for the period from February 4, 2000, to June 16, 2000. The court postponed ruling on attorney fees. RP 7-28-00 at 19-20.
On September 1, 2000, Roberson presented an amended order of judgment in the amount of $126,800 and an order for award of attorney fees totaling $11,096. The trial court signed both orders 'because we are talking about a situation where the defendants did not follow the court order with regard to removal of the garage addition, necessitating further requests for relief from the court.' RP (9-1-00) at 4-5.
VII. Subsequent Appeals
After the Norboms appealed the two September 1, 2000 orders, we consolidated that appeal with their earlier appeal of the February 4, 2000 order of judgment and increased sanctions.
Analysis I. Contempt and Sanctions (February 4, 2000)
The Norboms initially argue that the trial court erred in imposing sanctions on February 4, 2000, for noncompliance with a court order because (1) their noncompliance was unintentional, and (2) the prior orders were unclear. More specifically, they contend that the orders failed to articulate clearly the action necessary to achieve compliance because the orders misidentified a critical exhibit, namely their 'exhibit 2.'
Under Washington's contempt statute, a person who intentionally disobeys 'any lawful judgment, decree, order, or process of the court' commits contempt of court. RCW 7.21.010(1)(b). If the court finds that a person has failed or refused to perform an act within the person's power to perform, the court may find that person in contempt of court and may impose remedial sanctions 'designed to ensure compliance with a prior order of the court.' RCW 7.21.030(2)(c). Although the facts found must constitute a plain violation of the order, sanctions imposed for contempt of court are within the trial court's sound discretion, which we will not disturb on appeal absent abuse of that discretion. Johnston v. Beneficial Mgmt. Corp., 96 Wn.2d 708, 712-13, 638 P.2d 1201 (1982); In re Marriage of Mathews, 70 Wn. App. 116, 126, 853 P.2d 462 (1993).
Here, the trial court imposed sanctions on February 4, 2000, based on the Norboms' failure to comply with its earlier orders of July 20, 1998, and February 12, 1999. The court awarded sanctions of $30,800 (308 days at $100 per day) for the period from February 12, 1999, through December 17, 1999 (when the court heard the motion for increased sanctions of $500 per day). But it reserved entering judgment for 30 days to give the Norboms another chance to comply. When the Norboms subsequently failed to take advantage of that 30-day reprieve, the trial court awarded increased sanctions of $24,500 (49 days at $500 per day) for the period from the December 17, 1999 hearing to entry of the formal order on February 4, 2000. CP at 73-74.
The Norboms argue that they did not intentionally refuse to comply with the trial court's orders regarding their garage because they could not obtain a building permit until the 'misidentified critical exhibit' was properly identified in the order entered on February 4, 2000. Roberson responds that the Norboms made no good-faith effort to comply with the court's orders concerning their garage roof height. Despite the stipulated agreement, the Norboms built a nonconforming garage and rented out its second-story apartment. Even after the trial court's July 1998, February 1999, and December 1999 orders, the Norboms advertised the space above the garage as living quarters.
Despite the July 1998 court order finding the Norboms' garage to be noncompliant with its earlier order, Norbom stated in 1999 that he wanted to let the prospective purchaser have input into the ultimate design 'in the event the roof line must be lowered' (although the court had already ordered it lowered). And when Norbom applied for a building permit, he submitted his own sketch, not the architectural drawing agreed upon by the parties, which his attorney had previously identified as 'exhibit 2.'
Norbom claims that he discovered that the 'exhibit 2' referenced in the 1990 court order was not one of Roberson's exhibits only after the city demanded better proof that the court had approved his proposed plan. This claim is undermined by the following facts: (1) Norbom's own attorney had submitted this exhibit; and (2) the court order identified it as 'defendants' exhibit 2.' Moreover, even after this admitted discovery of the correct drawing, the Norboms submitted a building proposal that would have raised, not lowered, the height of the walls and the roof of the existing, and already nonconforming, garage. The Norboms' actions refute their assertion that their noncompliance with the court's order was unintentional.
Nor does the record support the Norboms' contention that they could not comply with the trial court's orders because of 'confusion' over the exhibit number of the drawing they were to follow in constructing the garage roof. In 1990, the Norboms had submitted that drawing from their own architect to the court, and their own attorney had referred to it as 'defendants' exhibit 2,' a drawing by 'Larry Berry.' Moreover, the 'order identifying exhibit' entered on February 4, 2000, noted the parties' agreement that the Berry drawing had been previously referred to as 'defendants' exhibit 2' and as 'exhibit 2 filed 11/8/90.'
Given these facts, we hold that the trial court did not abuse its discretion in finding the Norboms in contempt and in imposing the sanctions referenced in its order of February 4, 2000.
II. Additional Sanctions (February 4 — June 16, 2000)
The Norboms also contend that the trial court erred in imposing sanctions from February 4, 2000, through June 16, 2000.
A. Form of Motion
The Norboms first argue that the trial court abused its discretion in considering Roberson's motion for sanctions because it was not properly filed. Roberson initially noted her motion by filing a 'note for motion docket,' requesting increased sanctions. RP (7-28-00) at 3. On June 16, the court refused to hear argument on the motion. RP (7-28-00) at 5; see also CP 278.
After Roberson filed a second note for motion docket, noting in writing her motion for 'increased judgment and sanctions' and requesting a hearing on July 21, the court allowed argument, reasoning that the filing was sufficient to give the Norboms notice of the substance of Roberson's motion. That the trial court ultimately heard the motion was consistent with the general principle that '[m]otions are to be construed as to do substantial justice, with substance controlling over form.' Neal v. Wallace, 15 Wn. App. 506, 508, 550 P.2d 539 (1976).
Under CR 7(b)(1), an application for an order must be by written motion, unless made during a hearing or trial, and it must state with particularity the grounds on which it relies and set forth the relief or order sought. Although Pierce County has a local rule providing that motions may be noted for hearing by service and filing of a note of issue, the local rule does not relieve the moving party from any greater notice or filing requirements established by law or court rule. PCLR 7(2).
CR 7 serves two purposes. One is to establish the time for bringing a motion so that it can be considered in light of the circumstances as they existed at the time of filing, even though the hearing on the motion may be delayed. Davenport v. Davenport, 4 Wn. App. 733, 734, 483 P.2d 869 (1971). Another is to give the other party notice of the relief sought. Pamelin Indus., Inc. v. Sheen-USA, Inc., 95 Wn.2d 398, 402, 622 P.2d 1270 (1981). Roberson's note for motion fulfilled the first purpose because it noted the date that the motion was filed. It also satisfied the second purpose because it notified the Norboms of Roberson's intent to seek increased sanctions. The Norboms do not and cannot argue that they did not receive adequate notice of the content of Roberson's motion.
We hold that the trial court did not abuse its discretion in hearing argument on Roberson's motion for increased sanctions.
B. Award of Sanctions
The Norboms also argue that the trial court erred in imposing sanctions for the period from February 4 to June 16, 2000, because they were trying to comply with its orders during that time. Following the July 28, 2000 hearing, continued from June 16, the trial court imposed sanctions based on the Norboms' continued noncompliance with the court's orders to lower the garage roof. RP (7/28/00) at 3.
In requesting sanctions, Roberson argued that the Norboms were not in compliance because she could not see any alteration of the roof line.
The Norboms contend that (1) they obtained a building permit on April 24, 2000; (2) they completed interior work in the garage on June 8; and (3) by the time they appeared in court on July 28, the garage was in compliance with the court's orders. In support, they submitted a city plans examiner's declaration that work on the garage was completed on June 29. RP (7-28-00) at 10-11. The Norboms argue, in essence, that their partial progress toward compliance should have forestalled sanctions, which were not intended to continue until construction was complete or until Roberson could see a difference in the roof line.
The February 12, 1999 order clearly provided that sanctions would continue until the Norboms filed a satisfaction of judgment, a stipulation of the parties, or a permit application, as well as a schedule of reasonable completion. But the Norboms made no effort to inform the court of their compliance efforts before the July 28 hearing. Moreover, that they completed the interior work by June 8 does not show compliance with the court's order to lower the garage roof. That Roberson could see no progress toward compliance, because the roof did not change, is evidence that the Norboms were not in compliance when they completed the interior work on June 8.
We hold that the trial court did not abuse its discretion in awarding sanctions for the period from February 4, 2000, to June 16, 2000.
III. Increased Sanctions (December 17, 1999 — February 4, 2000)
The Norboms finally argue that there was no basis for increasing the sanctions to $500 per day and that the sanctions amounted to a windfall for Roberson that bore no relationship to the actual damages she suffered.
The primary purpose of the court's civil contempt power is to coerce a party to comply with an order or judgment. State v. Breazeale, 144 Wn.2d 829, 31 P.3d 1155, 1161 (2001). A trial court has broad discretion in imposing sanctions for violation of its orders, tempered only by its reasonable exercise. See State v. Dugan, 96 Wn. App. 346, 351, 979 P.2d 885 (1999). The Norboms cite no pertinent authority for their contention that the trial court abused its discretion in imposing the increased sanctions. On the contrary, we hold that the Norboms' extraordinary recalcitrance justified the trial court's conclusion that equally extraordinary sanctions were necessary to compel their compliance with its orders.
The Norboms had several previous opportunities to comply with the court's orders subject to sanctions of $100 per day; these sanctions had not achieved compliance. At the December 17, 1999 hearing, the Norboms were placed on notice that Roberson was seeking increased sanctions of $500 per day. But instead of taking advantage of the court's 30-day grace period for a last chance at compliance, the Norboms actively defied the court's orders by submitting a plan that retained, rather than removed, the noncompliant second-story apartment over the garage.
The trial court was clearly justified in discounting the Norboms' claim that they mistakenly submitted the wrong drawing to the city when they applied for a building permit.
The trial court did not err when, on February 4, 2000, it decided that sanctions of $500 per day, retroactive to December 17, were required to obtain the Norboms' compliance. With regard to the Norboms' argument that the total award amounts to a windfall for Roberson, we agree with Roberson that no such proof-of-damages requirement limited the trial court's ability to coerce compliance with its orders. The Norboms themselves cite a case stating, Civil contempt sanctions are coercive, conditional and indeterminate. The contemnor carries the keys of the prison door in his own pocket and can let himself out by simply obeying the court order. State v. John, 69 Wn. App. 615, 619, 849 P.2d 1268 (1993).
It is the contemnor's actions that determine the amount of sanctions, not the opposing party's damages. Here, the ability to avoid sanctions lay at all times with the Norboms. Yet they continued to defy the court's orders repeatedly by failing to lower the roof, advertising the nonconforming second-story apartment, and submitting plans to the city to retain the second-story and to top it with a flat roof. That the sanctions eventually accumulated to total more than $100,000 demonstrates no error or abuse of discretion by the trial court.
We affirm the sanctions and attorney fees awarded below. We award Roberson attorney fees on appeal, subject to compliance with RAP 18.1. RCW 7.21.030(3); R.A. Hanson Co. v. Magnuson, 79 Wn. App. 497, 502, 903 P.2d 496 (1995).
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: BRIDGEWATER, J., ARMSTRONG, C.J.