Opinion
Nos. 39273-9-II Consolidated with No. 39733-1-II.
Filed: January 4, 2011. UNPUBLISHED OPINION
Appeals from a judgment of the Superior Court for Thurston County, No. 08-2-01024-1, Anne Hirsch, J., entered May 1, 2009.
Affirmed by unpublished opinion per Van Deren, J., concurred in by Worswick, A.C.J., and Armstrong, J.
Stiles and Poki Moore appeal from (1) the trial court's entry of a permanent injunction in favor of Suzanne Vaughan preventing them from blocking or interfering with her access to a 15 feet by 30 feet easement and (2) the trial court's order holding them in contempt for violating the injunction. The Moores argue that (1) Vaughan's remodeling of her garages, not the Moores' parking in the easement area, interfered with her use of the easement; (2) the Moores had extinguished the corner of the easement area in which they were parking by adverse use; (3) they were not in contempt of the injunction by parking on their property and leaving Vaughan adequate room to maneuver; and (4) the trial court improperly imposed a punitive contempt sanction by ordering the Moores to pay Vaughan's attorney fees for the contempt proceeding. We affirm the trial court's orders and award Vaughan her attorney fees on appeal.
Facts
The Montgomerys, Vaughan's original predecessors in interest, built their home at 3808 Sunset Beach Drive Northwest (3808 property) in Thurston County. The Walbridges, the Moores' predecessors in interest, built their home on an adjoining property, 3806 Sunset Beach Drive Northwest (3806 property). In 1985, Mrs. Walbridge, a widow, and the Montgomerys agreed to create a written easement agreement for (1) Walbridge's use of the portion of a shared driveway on the Montgomerys' property, (2) a 15 feet by 30 feet area on Walbridge's property for the Montgomerys to maneuver and park vehicles, and (3) an easement for the eave overhang of one of the Montgomerys' garages. The easement agreement provided in pertinent part that Walbridge granted a "perpetual exclusive easement" over and across the 15 feet by 30 feet area to the Montgomerys "[f]or the sole purpose of providing space for the maneuvering and parking of motor vehicles." Clerk's Papers (CP) at 13.
The Moores bought the 3806 property from the Walbridges in July 1987. Vaughan purchased the 3808 property from the Andersons, the third owners of the property, in April 2000. The entire long side of the easement abuts Vaughan's driveway and the shorter side abuts the Moores' private driveway.
The Moores drew a diagram of the properties subject to this dispute. Both parties used this diagram during trial, with Vaughan disputing only that the diagram failed to show that more of the shared driveway was on her property. The crosshatched portion of the diagram indicates the portion of the easement where the Moores began parking, giving rise to this dispute. The squares labeled "14" and "16" indicate Vaughan's two garages. CP at 102. The square in the center of the diagram is the "pump house" referred to by the parties and shown prominently in many of the pictures. Report of Proceedings (Feb. 2, 2009) at 115.
This dispute arose when Vaughan filed a complaint seeking injunctive relief, alleging that the Moores were limiting and completely blocking her access to the easement area by parking their vehicle, a silver Jeep, in the easement area. Vaughan moved for a temporary restraining order (TRO) preventing the Moores from parking in the easement area or in a manner that would block her use of the easement area. She complained that, in addition to parking in the easement area, the Moores had begun to park on their own property in a manner that blocked or limited her access to it. Vaughan submitted numerous photographs showing where the Moores parked and that it limited or blocked her access to the easement area. The trial court granted her motion and entered a TRO.
At a bench trial, Stiles Moore testified that he had used the northeast corner of the easement for parking for over twenty years, and argued that this use extinguished that portion of the easement by adverse possession. Four witnesses testified for Vaughan: Karen Vaughan, Vaughan's sister who had visited Vaughan every weekend for the immediately preceding four years; Darlene Dow, the Moores' former neighbor who had lived there 40 years; Katherine Hayes, who has lived a few blocks away for 43 years; and Jay Anderson, Vaughan's immediate predecessor in interest who had lived there approximately 5 years. All testified that Moore had not parked in the easement area before the current dispute arose.
Anderson and Vaughan also testified that, due to the small size of the easement area, they historically had pulled or backed into a small "triangular area" of the Moores' property abutting the easement for purposes of turning around. Report of Proceedings (RP) (Feb. 2, 2009) at 78. The Moores began interfering with Vaughan's use of the easement by parking in the triangular area of the Moores' property or in the easement and completely blocking in Vaughan's vehicles or greatly limiting her maneuverability.
The Moores argued that Vaughan changed the scope of the easement and interfered with her use of it by remodeling her garages into living areas and landscaping in front of the garages, thus reducing the easement area. Vaughan testified that the landscaping did not reduce the actual asphalt surface of the easement area or change her use of it.
On May 1, 2009, the trial court issued written findings of fact and conclusions of law and entered a permanent injunction against the Moores' use of the 1985 easement agreement area. The injunction specifically enjoined the Moores from "blocking [Vaughan]'s vehicles and preventing her from maneuvering and parking her vehicles or accessing that portion of the paved driveway as described in the above-referenced Easement Agreement." CP at 121.
On May 7, 2009, Vaughan filed a motion for contempt against the Moores. She alleged that on May 3, Stiles Moore again parked in a manner completely blocking her use of the easement area. She submitted numerous photographs to support her allegations. The Moores responded by alleging that they were parking on their own property more than 20 feet away from Vaughan's car. Vaughan subsequently filed more declarations, with supporting photographs, alleging that the Moores continued to park daily in a manner completely or partially blocking up to seven and one half feet of the easement area.
After notice and a hearing, the trial court found the Moores in contempt of its permanent injunction, granted Vaughan's motion, and awarded Vaughan $2000 in attorney fees. The Moores appeal.
We note that the trial court's injunction appears to have granted a de facto prescriptive easement to Vaughan over the triangular portion of the Moores' property. But the Moores do not raise this issue on appeal.
Analysis
I. Scope of and Interference with Easement
We review a trial court's decision to grant an injunction and the terms of its injunction for abuse of discretion. Kucera v. Dep't of Transp., 140 Wn.2d 200, 209, 995 P.2d 63 (2000). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds. Kucera, 140 Wn.2d at 209. We review a trial court's findings of fact for substantial evidence, and its conclusions of law de novo. Rainier View Court Homeowners Ass'n, Inc. v. Zenker, 157 Wn. App. 710, 719, 238 P.3d 1217 (2010). "[S]ubstantial evidence" is "a quantum of evidence sufficient to persuade a fair-minded person that the premise is true." Rainier View, 157 Wn. App. at 719.
The Moores argue that the trial court abused its discretion in entering the permanent injunction because it was not their use of the easement that materially interfered with Vaughan's use of the easement. Specifically, it appears that they argue that Vaughan's remodeling of her garages, which they allege reduced the scope of the easement, actually caused the interference with her use of the easement. The Moores fail to include any citation to authority that a party to a written, express easement may reduce the scope of the easement through her own actions, thus, we need not consider the Moores' argument on this point. RAP 10.3(a)(6).
The Moores continue to assert several times in their brief that they were entitled to continue using the easement "provided the use does not materially interfere with Vaughan's use." Br. of Appellant at 7. But they never explicitly state that their use of the easement did not interfere with Vaughan's use or how their use does not interfere with her use. They only state that it was Vaughan's garage remodeling that materially interfered with her use of the easement.
In challenging the trial court's conclusions, the Moores assign error only to the trial court's finding of fact 4. Unchallenged findings of fact are verities on appeal. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 808, 828 P.2d 549 (1992). Finding of fact 4 states:
The trial court's unchallenged findings of fact state in pertinent part: (1) Vaughan has owned the 3808 property since April 2000 and her predecessors, the Andersons, owned it for five years; (2) the Moores have owned the 3806 property since 1987; and (3) the Moores' property is subject to an easement agreement providing Vaughan with a perpetual exclusive easement over an area of the Moores' property for the sole purpose of providing Vaughan "space for the maneuvering and parking of motor vehicles." CP at 117.
[Vaughan] and her predecessors in interest have enjoyed uninterrupted use without interference of anyone of the described easement area for the uses and purposes therein described in said easement agreement. Beginning in the fall of 2007, [the Moore]s began interfering with [Vaughn]'s use of said easement area by parking [their] motor vehicle in the 15' x 30' described easement area thereby preventing [Vaughan] from maneuvering and parking in said easement area. [The Moore]s have also parked their vehicle just outside of the described easement area in such a manner as to interfere and block [Vaughan]'s enjoyment and use of the 15' x 30' easement area, thereby causing her actual and substantial injury. [The Moore]s have been parking in a triangular area commencing on the part[ies'] common boundary line on the uphill corner of the 15['] x 30' easement area extending uphill 30 feet and running downhill to the most uphill corner of the above described easement 15' onto the [Moores'] property.
CP at 117-18.
Vaughan testified at trial that her garage remodeling and landscaping did not reduce the size of, interfere with, or change her use of the easement. Moore testified to the contrary, but credibility determinations are for the trier of fact. Malnar v. Carlson, 128 Wn.2d 521, 536, 910 P.2d 455 (1996). The trial court clearly resolved this determination against the Moores.
Here, Vaughan, her sister, Dow, Hayes, and Anderson all testified that the Moores had never parked in the easement area or in a manner to block access to the easement until this dispute arose. Vaughan submitted numerous photographs showing the Moores parking in the easement area and the triangular area abutting it and the difficulties that it caused her in accessing the easement area. Substantial evidence supports the trial court's finding of fact 4 and the Moores' claim fails.
II. Adverse Possession
The Moores contend that the trial court erred in entering the permanent injunction because they extinguished the northeast corner of the easement area through adverse possession.
We review a trial court's adverse possession determination de novo, and we review the trial court's factual findings for substantial evidence. Maier v. Giske, 154 Wn. App. 6, 18, 223 P.3d 1265 (2010); Bryant v. Palmer Coking Coal Co., 86 Wn. App. 204, 210, 936 P.2d 1163 (1997).
Individuals can extinguish easements through adverse use. Cole v. Laverty, 112 Wn. App. 180, 184, 49 P.3d 924 (2002); City of Edmonds v. Williams, 54 Wn. App. 632, 634, 774 P.2d 1241 (1989). This presupposes some use by the claimant. The trial court's finding of fact 4, which is supported by substantial evidence, was that Vaughan and her predecessors have enjoyed uninterrupted use of the easement. Moore testified to the contrary, but that is a credibility determination resolved against him by the trier of fact. Malnar, 128 Wn.2d at 536. Their claim that they extinguished a portion of the written easement by their prolonged use fails.
III. Finding of Contempt
The Moores also argue that the trial court erred in finding them in contempt and ordering them to pay Vaughan's attorney fees because they parked their car on their property and left Vaughan adequate room to access the easement area. Vaughan counters that substantial evidence supports the court's findings and conclusions of contempt. Contrary to the Moores' request that we review the trial court's findings de novo as issues of law, we review punishment for contempt for an abuse of discretion. In re Marriage of Mathews, 70 Wn. App. 116, 126, 853 P.2d 462 (1993). A trial court abuses its discretion when it exercises its discretion based on untenable grounds or reasons. Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995).
RCW 7.21.010(1)(b) defines "[c]ontempt of court" as "intentional . . . [d]isobedience of any lawful judgment, decree, order, or process of the court." Chapter 71.21 RCW distinguishes between punitive and remedial sanctions for contempt. RCW 7.21.010, .030; former RCW 7.21.040 (1989).
Based on the evidence at the contempt hearing, the trial court found that the Moores intentionally failed to comply with the permanent injunction by completely or partially blocking Vaughan's access to the easement area and that the Moores had and continued to have the ability to comply with the injunction. The Moores do not assign error to any of the trial court's findings of fact on the contempt motion, thus, we treat the findings as verities on appeal. Cowiche Canyon Conservancy, 118 Wn.2d at 808. These findings support the trial court's conclusion that the Moores intentionally disobeyed the trial court's order granting the permanent injunction against their use or obstruction of the easement. IV. Attorney Fees for Contempt Proceedings
The trial court's findings on the contempt motion included the following: (1) the Moores "intentionally failed to comply with a lawful order of the court"; (2) the order was a permanent injunction; (3) the Moores violated the order by completely blocking Vaughan's access to the easement area on May 3, 2009, and on May 29, 2009, and partially blocking Vaughan's access to the easement area on a daily basis since May 3, 2009; (4) the Moores had the ability to comply with the injunction by not blocking Vaughan's access to the easement area; (5) the Moores continued to have the ability to comply with the injunction; and (6) Vaughan had incurred the reasonable attorney fees that the trial court was awarding. CP at 186.
Finally, the Moores argue that the trial court improperly imposed a punitive contempt sanction by ordering them to pay Vaughn's attorney fees for the contempt proceedings without allowing them an opportunity to purge the contempt. Vaughan counters that RCW 7.21.030 authorized the trial court to order payment of her attorney fees on its finding of contempt
A "[p]unitive sanction" is "a sanction imposed to punish a past contempt of court for the purpose of upholding the authority of the court." RCW 7.21.010(2). A "[r]emedial sanction" is "a sanction imposed for the purpose of coercing performance when the contempt consists of the omission or refusal to perform an act that is yet in the person's power to perform." RCW 7.21.010(3). RCW 7.21.030(2) enumerates various remedial sanctions the trial court may impose on a contempt finding. RCW 7.21.030(3) also provides that
[t]he court may, in addition to the remedial sanctions set forth in subsection (2) of this section, order a person found in contempt of court to pay a party for any losses suffered by the party as a result of the contempt and any costs incurred in connection with the contempt proceeding, including reasonable attorney's fees.
"A civil contempt sanction is coercive and remedial, and is typically for the benefit of another party; a criminal sanction is punitive and is imposed for the purpose of vindicating the authority of the court." In re Pers. Restraint of King, 110 Wn.2d 793, 800, 756 P.2d 1303 (1988).
RCW 71.21.030(3) specifically authorizes the trial court to award attorney fees associated with the contempt proceedings. Further, the plain language of RCW 71.21.030(3) indicates that its purpose is not to punish a contemnor for violating a court order, but to compensate the beneficiary of the court's order for losses incurred because of the order's violation and in enforcing the order. Even assuming an award of costs constitutes a "sanction" under the statute, it would clearly be remedial. The Moores' claim fails.
V. Attorney Fees on Appeal
Vaughan requests attorney fees under RAP 18.1 and RCW 7.21.030(3). RAP 18.1 allows attorney fees on appeal if applicable law authorizes them. RCW 7.21.030(3) allows an order for "any costs incurred in connection with the contempt proceeding, including reasonable attorney's fees." See also In re Marriage of Curtis, 106 Wn. App. 191, 202, 23 P.3d 13 (2001) (Appellate court may award attorney fees to "[a] party defending the appeal of a contempt order."). We award Vaughan her attorney fees on appeal in an amount to be determined by our commissioner.
We affirm and award Vaughan attorney fees.
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.
WORSWICK, A.C.J. and ARMSTRONG, J., concur.