Gritzbaugh Main Street Properties, LLC v. Greyhound Lines, Inc. , 205 Or. App. 640 ( 2006 )

EDMONDS, P. J.,

concurring.

I agree with the majority’s resolution of the issues before us. I write separately because I believe the majority incorrectly applies the language of ORS 33.025(2)(b) (1999) to this case.

ORS 33.025(2)(b) provides that a corporation is liable for contempt if “[t]he conduct constituting contempt consists of an omission to discharge a specific duty of affirmative performance imposed on corporations by a court[.]” The judgment that enjoined defendants provides,

“[Defendants] are hereby enjoined from any and all further use of plaintiffs’ premises as a bus station and compelled to relocate its bus station activities to an area that will not interfere with plaintiffs’ use and enjoyment of the premises [.]”

The majority reasons,

“Under the language of the injunction, Greyhound did not have an independent affirmative obligation to relocate its business so long as it ceased business activities on plaintiffs’ property and adjacent property. Thus, defendant’s alleged contempt could not be based on the failure to follow an affirmative obligation and, accordingly, defendants did not engage in contempt under ORS 33.025(2)(b).”

205 Or App at 652.

I disagree with the majority’s assertion that defendants did not have an obligation under the injunction “to discharge a specific duty of affirmative performance.” In issuing the injunction, the trial court found,

“After July 1, 1999, and repeatedly through the above date of hearing, the defendants have continued to trespass upon and use the premises and adjacent property for loading and unloading of passengers, freight, and luggage, for bus turnaround, passenger parking, waiting, waste disposal, loitering, and other activities incidental to transportation and its common carrier business.”

Based on that finding, Greyhound was charged by the court under the language of the injunction with a specific duty that required an act of affirmative performance on its part, i.e., to move the bus stop from its existing location to a location that was not on plaintiffs property or adjacent property. Although it is correct in the abstract that Greyhound could have complied with the provisions of the injunction by ceasing its business activities on plaintiffs’ property and the adjacent property, that is not what occurred. Greyhound merely moved its business location to adjacent property, approximately 19 feet away from plaintiffs’ property. That action put it in violation of the injunction’s specific duty to affirmatively move its business activities from adjacent property if it continued to do business in the vicinity and potentially put it in contempt of the court’s injunction. Unlike the majority, I would hold that Greyhound’s action, based on the above facts, is governed by ORS 33.025(2)(b).

The question then becomes whether Greyhound’s action to relocate its bus stop is subject to the sanction of contempt as defined by statute. As the majority points out, the definition of “contempt of court” in ORS 33.015(2) includes the disobedience of a court’s judgment, if committed “willfully.” The present statute does not define the word “willfully.” However, by the insertion of the word “willfully” into the statute, the legislature appears to have codified existing case law, which has long recognized the requirement of “willfulness” before a contempt sanction could be imposed. See, e.g., Couey and Couey, 312 Or 302, 304, 821 P2d 1086 (1991).

For purposes of that case law, which now appears to have been codified, a “willful” mental state may be established for purposes of a prima facie case by proving that a party had knowledge of a valid court order and failed to comply with that order. State ex rel Mikkelsen v. Hill, 315 Or 452, 458, 847 P2d 402 (1993). However, when the issue is the sufficiency of the evidence, a corollary principle under the case law is that a good faith effort to comply with the judgment is a defense to a contempt charge. See, e.g., State ex rel Oregon State Bar v. Wright, 280 Or 713, 715, 573 P2d 294 (1977) (holding that punishment for civil contempt should be restricted to cases in which the violation of a court order is with “bad intent”). Thus, in determining whether a person has acted in willful disobedience of a court judgment, a trial court may properly take into account the circumstances that led the person to disobey the judgment. See, e.g., State ex rel Sahlstrom v. Malos, 245 Or 598, 600, 422 P2d 580 (1967) (holding that, although the defendant’s subsequent conduct was a violation of the court’s judgment, the fact that she received legal advice that the activity engaged in was not a violation was part of the evidence to be considered in determining whether her conduct was “willful”). I conclude that the legislature’s codification of the word “willful” into the statute without any restriction was intended to codify all of the above common-law principles.

That understanding has relevance to this case in which the trial court found that Greyhound’s agents believed in good faith that they were in compliance with the injunction when they moved the bus stop from plaintiffs’ premises. In light of those findings, I agree with the majority that, under a sufficiency of the evidence standard of review, there is not substantial evidence to find Greyhound in contempt of court, even though I would hold that its actions violated the provisions of the preliminary judgment. I would only add that ORS 33.025(2)(b) presents a trap for the unwary. While ORS 33.025(2)(a) and ORS 33.025(2)(c) expressly refer to contempt sanctions for corporations that arise from the imputation of acts of corporate agents, subsection (b) of the statute addresses the circumstance where the corporation itself is the subject of the directive of the judgment. Nonetheless, because of the requirement of ORS 33.015(2) that the enumerated acts be done “willfully,” it is not enough under the statutory scheme to demonstrate merely that a corporation violated the provisions of a judgment.