Empress Estate, Llc, App/cross-resp v. Timothy J. Doyle, Et Ux, Res/cross-app ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
June 25, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
EMPRESS ESTATES LLC, a Washington No. 50323-9-II
Limited Liability Company, and ZOHIER
SALEEM,
Appellants/Cross-Respondents, UNPUBLISHED OPINION
v.
TIMOTHY DOYLE and TERRI DOYLE,
Husband and Wife and the marital community
thereof,
Respondents/Cross-Appellants.
SUTTON, J. — Empress Estate LLC and Zohier Saleem1 appeal two final orders from a
dispute with Timothy and Terri Doyle over a shared road easement. Saleem argues that the
superior court erred when it (1) did not require the Doyles to post an injunction bond, but required
Saleem to post a bond as the party requesting a preliminary injunction and an amended preliminary
injunction; (2) found Saleem in contempt for parking more than 30 vehicles on its property in
violation of the preliminary injunction; (3) imposed punitive sanctions; and (4) issued a permanent
injunction that permitted the Doyles to retain a wire fence within the road easement.
The Doyles cross appeal the amended final order on permanent injunction. The Doyles
argue that the superior court erred when it (1) ordered them to replace a cedar fence with a wire
1
Empress Estate and Saleem were the plaintiffs below. We refer to them collectively as Saleem
unless otherwise indicated.
No. 50323-9-II
fence and remove gateposts within the easement without a finding that either could establish an
adverse possession claim; (2) enjoined them from placing a fence in the future within the unused
portion of the easement area; (3) allowed a total of 68 vehicles to park on the Empress property;
and (4) ordered them to remove a speed bump within the easement without a finding that the speed
bump unreasonably interfered with Saleem’s use of the easement.
We hold that the superior court did not abuse its discretion by requiring Saleem, as the
party asking for both a preliminary injunction and an amended preliminary injunction, to post a
bond while not requiring the Doyles to post a bond. We also hold that the superior court erred by
imposing a $500 civil fine and a $1,500 damage award against Saleem for contempt violations
because they were punitive sanctions and we vacate both sanctions. We further hold that the
superior court did not abuse its discretion by holding Saleem in contempt for violating the 2015
amended order for preliminary injunction by allowing more than 30 vehicles to park on his
property. As to the Doyles’ cross appeal, we hold that all of their arguments fail. Thus, we affirm
in part, reverse in part, and vacate the sanctions.
FACTS
I. BACKGROUND
This appeal arises from a dispute between neighbors over the use of a shared road easement.
Empress Estates is accessed by a 60-foot easement called Empress Lane, a private paved road
crossing the Doyles’ property. Empress Lane is a recorded road easement and is the sole means
of ingress and egress to the Empress property. Saleem purchased Empress Estates in 2012, and it
had been used as a bed and breakfast inn. The Doyles own rural property near the Empress
property.
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The Cowlitz County Building and Planning Department receive complaints about Saleem
operating an event center and had concerns regarding Saleem’s use of the property. The county
had approved Empress Estates to operate as a five-room bed and breakfast inn, not as an event
center. After multiple alleged zoning violations, a hearing took place on June 23, 2017. The
hearing officer found that the existing building on the Empress property was not sanctioned as an
event center because Saleem had not retrofitted the sprinkler system within the existing building.
Despite the limited approval, the hearing officer found that Saleem, as the owner of Empress
Estates, had continued to hold large events on the Empress property. Due to the lack of adequate
parking for the events, many guests parked their cars along the private road easement, Empress
Lane.
The events held at Empress Estates disrupted the Doyles’ rural lifestyle due to loud music,
headlights, cars parked adjacent to their property, and occasional intruders who tried to touch their
horses. The Doyles photographed the patrons and took other actions to deter the Empress visitors.
The Doyles allegedly erected a gate with a keypad and motion sensor across Empress Lane and
the gate had, on many occasions, restricted Saleem’s use of Empress Lane either because the
Doyles allegedly locked the gate, or because the motion sensor failed to work. The Doyles also
allegedly installed several speed bumps along Empress Lane to slow traffic associated with events
on the Empress property.
In 2014, the Doyles allegedly destroyed signposts put up by Empress Estates directing
visitors to the event center, hung several “No Trespassing” signs near the beginning of Empress
Lane, and engaged in other harassing conduct. This alleged conduct included the following:
hanging dead animal carcasses and severed animal heads within the easement area; feeding
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animals in the middle of the easement to impede traffic; causing an ice hazard by overflowing a
sump pump across Empress Lane; obstructing the road easement with piles of horse manure, snow,
traffic cones, garbage cans, trucks, and heavy machinery; and using social media to discourage
potential clients from visiting Empress Estates.
II. 2013 ORDER GRANTING PRELIMINARY INJUNCTION
In 2013, Saleem sued the Doyles and requested injunctive relief to (1) remove the gate the
Doyles installed, (2) cease harassing his visitors, and (3) cease interfering with his use of the
easement. On June 19, 2013, the superior court granted a preliminary injunction in favor of Saleem
and ordered (1) the Doyles to keep the gate they had installed across Empress Lane open; (2)
Saleem to take “reasonable steps to insure that [his] invitees did not disturb the [Doyles];” (3) both
parties to stop harassing one another; and (4) payment of a $5,000 bond. Clerk Paper’s (CP) at
72-73. Specifically, the court’s order stated, “Bond is set [at] $5,000,” without specifying which
party was required to pay the bond. CP at 73. Subsequent orders clarified that Saleem was the
party required to pay the $5,000 bond.
In 2015, Saleem and Empress Estates sued the Doyles, alleging interference with the
easement, tortious interference with business expectancy, damage to property, nuisance, outrage,
and intentional infliction of emotional distress. The superior court consolidated the 2013 and 2015
cases.
III. CONTEMPT MOTIONS AND 2015 AMENDED ORDER ON PRELIMINARY INJUNCTION
In April 2015, the parties filed cross-motions for contempt, alleging violations of the 2013
order granting preliminary injunction. A commissioner of the superior court heard the motions
and found both parties in contempt of the order, imposed additional restrictions on both parties,
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and amended the order. On April 22, 2015, the superior court entered an amended order on
preliminary injunction.
In the 2015 contempt proceeding, Saleem filed a declaration stating that the county had not
limited the number of vehicles allowed on the Empress property, and stating that there were
parking spaces for more than 85 vehicles which were not within sight of the Doyles’ property.
Based on this declaration, the superior court increased the number of vehicles that were permitted
to park on the Empress property for events from 10 to 30 in its amended order on preliminary
injunction.
The 2015 amended order on preliminary injunction enjoined the plaintiff, Saleem, as
follows:
a. No more than 30 motor vehicles may be on [Saleem’s] property at the same time;
b. [Saleem] and his invitees are not to park on the access easement, and [Saleem]
must enforce this prohibition with respect to his invitees;
c. The motion-activated light which [Saleem] has installed is to be deactivated,
moved so that it faces away from [the Doyles’] property, or shielded; and
d. [Saleem] and his representatives and invitees are not to photograph or videotape
anything on the access easement or on defendant’s property, other than in the
presence or with the consent of counsel for both parties.
CP at 868.
The 2015 amended order also enjoined the Doyles as follows:
a. [The Doyles are] not to linger within 50 feet away from the gate located on the
access easement, other than when [they are] simply passing through the area;
b. [The Doyles] and [their] representatives are not to photograph or videotape
anything on the access easement or on [Saleem’s] property, other than in the
presence or with the consent of counsel for both parties; provided, however, [the
Doyles] may continue to utilize his surveillance camera to view his own property
and the access easement;
c. [The Doyles] shall not park machinery or equipment in the roadway that is the
access easement;
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d. [The Doyles] shall not damage or destroy any signage relating to [Saleem’s]
business.
CP at 868.
The 2015 amended order stated that all aspects of the original order on preliminary
injunction remained in full force and effect, and the amended order supplemented the original
preliminary injunction.
IV. EMBRATORA PROPERTY AND NEW MULTI-PURPOSE BUILDING
In November 2015, Saleem purchased an adjacent property called Embratora, and installed
25 additional parking spaces on that property for the event center. In early 2016, Saleem filed
plans with the county to build a new multi-purpose building on the Empress property, incorporate
the extra parking spaces on the Embratora property, and add 13 additional parking spaces next to
the new building. The county issued the permits and construction began.
The properties owned by Saleem and the Doyles are in a designated RR-2 area,2 but are
not otherwise zoned. Julius Ledgett created the easement known as Empress Lane for “ingress
and egress.” CP at 583. He stated in his declaration, “We did not intend to place any restrictions
on the use of these easements and anticipated that the properties would be used for any purpose
permitted by the land use and building code rules and regulations.” CP at 157.
2
Under Cowlitz County code 18.10.160, properties designated as RR-2 are “rural residential,” but
may be used for limited commercial purposes as long as the usage is compatible with the residential
character of the land use district. The commercial use is “subject to special use permit approval
pursuant to CCC 18.10.280 through 18.10.490.” CCC 18.10.160 (located at:
https://www.codepublishing.com/WA/CowlitzCounty/html/CowlitzCounty18/CowlitzCounty181
0.html#18.10.160).
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V. 2017 CONTEMPT MOTION AND MOTION TO RECONSIDER
In early 2017, the Doyles filed another motion for contempt, alleging that Saleem violated
the 2015 amended order on preliminary injunction by parking more than 30 vehicles on the
Empress property. Saleem objected to this motion, alleging that the motion was an attempt to
harass him.
The superior court held a hearing and ruled that Saleem had violated the injunction and
required that the $5000 bond be forfeited as a sanction. Saleem filed a motion to reconsider and
requested a stay of the sanction pending appeal.
On March 22, 2017, the superior court entered an order denying in part and granting in part
the motion to reconsider and denying a stay of proceedings, ruling:
1. There is a sufficient basis under CR 59 for the Court to reconsider its January
18, 2017, oral ruling;
2. The April 22, 2015, Amended Order for Preliminary Injunction is valid. The
Amended Order made specific reference to the June 19, 2013 Order and stated that
all aspects of it “remain[] in full force and effect” and that the Amended Order
“supplement[ed]” the original Order. Because the original Order required a bond
and this bond requirement remained and was part of the Amended Order, the
Amended Order is valid and enforceable.
3. The Court’s oral ruling requiring the forfeiture of the $5,000 bond in favor of
[Saleem] is hereby vacated. The Court erred in so ruling. The purpose of the
injunction bond is to reimburse a wrongfully enjoined party from damages if the
Court determines that the injunction was wrongfully issued. That is not the case
here. Rather, the Court found [Saleem] had contemptuously violated the injunctive
order.
4. The Court denies the reconsideration of the finding of civil contempt. The facts
presented were discrete and readily ascertainable. The Court’s intention in
imposing a civil fine for [Saleem’s] civil contempt was and is to coerce [Saleem’s]
future obedience to the amended preliminary injunction, and to a lesser extent
punish [Saleem] for his violation. It is the Court’s opinion that if a coercive fine is
not imposed, [Saleem] will be emboldened to again violate the preliminary
injunction. The contempt fine is aimed at coercing [Saleem] to comply now and in
the future with the Court’s order.
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5. Further, with the instant order, [Saleem] is given an opportunity to purge the
vast majority of the civil contempt fine. Therefore, it is hereby ordered that upon
no further violations of the preliminary injunction, [Saleem] can purge $4,500 of
the $5,000 contempt fine. For now, [Saleem] may pay a civil fine of $500. He,
then, has the opportunity to purge $4,500 of the civil fine upon obedience to the
Court’s Order. By this mechanism, [Saleem] holds the key to lessen the sanction
and is thus motived to comply with the amended preliminary injunction.
6. [Saleem’s] motion to stay proceedings is denied.
CP at 74-75 (some alterations in original).
VI. ADDITIONAL MOTIONS AND THE SUPERIOR COURT’S JULY 17, 2017 ORDER
A. THE DOYLES’ MOTIONS FOR CONTEMPT
After the March 22 order, the Doyles filed additional contempt motions, alleging that
Saleem violated the injunction on April 10, April 24, and June 9, 2017, and filed a motion to
dismiss. Saleem argued that the 30 vehicle restriction was not enforceable as an injunction because
the Doyles were not required to post a bond and the “April 22, 2015 [o]rder is a condition, or
[o]rder, but cannot be an injunction.” CP at 584-85.
The court reviewed the declarations of Timothy Doyle and Roger Faraar which stated that
there were more than 30 cars parking on Empress Estates on April 10, April 24, and June 9. The
superior court found that Saleem’s April 8, 2015 declaration confirmed that there was “parking
spaces for more than eighty-five (85) vehicles, entirely on [the] property” and that this declaration
had been filed prior to his purchasing the adjoining property, the Embratora property. CP at 584.
The superior court also reviewed the declaration of Lisa Slater, who designed the additional
parking on the Embratora property. Slater stated, “With regard to parking, the intent of the
approved plans is to add an additional 38 parking spaces to those already existing on the Empress
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property. Indeed, the county has required as a condition of approval, that we provide at least 38
on-site parking spaces.” CP at 584.
The superior court rejected Saleem’s argument that the injunction was not enforceable
stating that court orders must be obeyed. The court also found “no support for the position that
the parking spaces on the Empress property is limited to 30.” CP at 584.
The superior court ruled that “[t]he Embratora parking spaces cannot be ‘on-site’ for the
county, but ‘off-site’ for the contempt motion.” CP at 584. Based on the declaration of Lisa Slater,
the court did not accept the argument that the Embratora parking spaces were not on the Empress
property because it determined that Empress Estates’ activity caused vehicles to park on the
Embratora property.
The superior court ruled that Saleem had violated the 30 vehicle restriction by continuing
to hold large events on the Empress property and found Saleem in contempt of the court’s 2015
amended preliminary injunction order. The court’s ruling referred to its March 2017 order that
gave Saleem the opportunity to purge $4,500 of the $5000 contempt fine by limiting the number
of vehicles parked on its property. The superior court stated, “That did not occur, further
warranting a finding of contempt. I find that Doyle is damaged from the three violations in the
combined amount of $1,500.00. This amount is to be paid directly to Mr. Doyle.” CP at 585.
B. VEHICLE LIMITATION AND SCOPE OF EASEMENT
Saleem also filed a motion to amend and make permanent the preliminary injunction
without any vehicle limitation. In response, the Doyles requested that the 30 vehicle limitation
remain. The superior court found that the Empress property had 30 parking spaces and the
Embratora property had 25 spaces, for a total of 55 available spaces, allowing for 55 vehicles. The
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court also found that 13 additional spaces were planned next to the event center, and when
constructed, there would be a total of 68 spaces, allowing for 68 vehicles to park. The superior
court based its decision on (1) the controls on the property, (2) the language of the easement and
intent of the grantor which included the broadest possible language of “ingress and egress,” and
(3) the fact that the Empress property and Doyle property are virtually unzoned, and any activity
that is not unlawful or a nuisance is allowed, including commercial activity.
The superior court ultimately ruled that Saleem must provide adequate parking for his
guests because he had the legal authority to operate an event center that was accessed by a private
road easement. The superior court ordered that the number of vehicles allowed must not exceed
the number of parking spaces actually constructed and approved by the county’s building and
planning department. The superior court also ruled that “. . . there is no basis to place any vehicle
restriction on the easement.” CP at 586. The court further ruled that the permanent injunction
would require Saleem to ensure that there is no parking along the road easement and that any
vehicle parking on the easement within “500 feet of the north Empress’[s] property line will raise
a rebuttable presumption that the permanent injunction has been violated. Any Empress invitee
parking on any part of Empress Lane will constitute a violation of the permanent injunction.” CP
at 587.
C. SALEEM’S EASEMENT RIGHTS ON THE DOYLES’ PROPERTY
Saleem also requested a permanent injunction against the Doyles that would allow him to
use the easement without interference by the Doyles and would require the Doyles to remove their
wire fence, gateposts, and farm equipment outside of the 60-foot easement, citing Littlefair v.
Schultz, 169 Wn. App. 659, 278 P.3d 218 (2012). In support of the motion, Saleem filed a
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declaration stating, “The paved portion [of Empress Lane] is approximately twenty-one (21) to
twenty-three (23) feet wide, more than adequate for the widest of cars and trucks to pass each other
along the road.” CP at 588.
The superior court ruled that the “[Doyles’] use of the unused portion of the 60-foot
easement does not interfere with Saleem’s, or the Empress guests’ enjoyment of the easement.”
CP at 588-89. The superior court also found that “Doyle’s wire fence along the roadway is not the
kind of permanent structure that was prohibited in Littlefair.” CP at 589. As a result, the superior
court denied Saleem’s request for a permanent injunction against the Doyles, with two caveats:
“First, should the road be widened in the future, Doyle will need to move his fence and equipment
to accommodate the new width of the road. Second, should Doyle choose to erect a more
substantial fence, it will need to be erected outside of the 60-foot easement.” CP at 589.
D. ADDITIONAL ISSUES
The superior court also addressed several additional issues raised by the parties. The court
ordered that the Doyles’ gate shall remain open; declined to enter an order regarding firearms,
noting that the property is in a virtually unzoned area, and the use of firearms is lawful; ordered
that two permanent speed bumps, one at each end of the Doyles’ property would be allowed;
determined that the Doyles are allowed to post “No Parking” signs within the easement area,
adjacent to their property; and determined there was no evidence of disparaging social media
activity.
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E. COURT’S JULY 17, 2017 ORDERS ON CONTEMPT AND AMENDING AND MAKING PERMANENT THE
INJUNCTION
On July 17, 2017, the superior court entered an order on the motions for contempt based
on its finding Saleem in contempt for violations of its April 22, 2015 amended order on preliminary
injunction. The superior court found that “[a]s a result of the excessive number of vehicles parking
on the Empress and Embratora3 properties, the [Doyles have] been damaged in the amount of
$1,500.00.” CP at 231.
The superior court also entered an order modifying the amended preliminary injunction to
limit the number of vehicles to equal the number of constructed and approved parking spaces, and
denied Saleem’s motion to require the Doyles to move their fence, gateposts, and farm equipment
outside of the 60-foot easement. The court’s order granted Saleem’s motion to amend and to make
the preliminary injunction permanent.
The July 17 order on permanent injunction includes the following relevant conclusions of
law:
1. The Easement grants [Saleem] the right to use the Easement for commercial
purposes. This includes the right to access a multi-use commercial facility such as
a bed-and-breakfast, event center, or other multi-use facility, if approved by
Cowlitz County.
2. [Saleem] will be allowed to fully use the Easement, consistent with Cowlitz
County’s land-use rules and regulations.
3. The Easement precludes [the Doyles] from interfering with [Saleem’s] lawful
use of the Easement, which includes the use of the road to allow visitors and
guest[s] to locate and access the Empress without harassment or interference.
3
Saleem, on behalf of Empress Estates, had previously represented to Cowlitz County officials
that parking on the Embratora property was “on-site” for the purpose of additional parking required
for the new multipurpose building. CP at 231. The court found that, because of that representation,
the vehicles parked there were to be included in the 30-car limitation.
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However, [Saleem] must take reasonable steps to notify [his] guests to not park or
trespass on [the Doyles’] property.
4. The Easement also precludes [the Doyles] from placing any permanent
structures or improvements within the 60-foot Easement area; however, this
restriction does not include Doyle’s existing wire fence, maintaining animals or the
storage of farm equipment and trailers off the road surface and behind the existing
wire fence, except:
a. [The Doyles] are directed to remove the cedar fence on the east side of
the road surface within 60 days.
b. [The Doyles] shall be allowed to place a wire fence in the area of the
cedar fence so long as it is 6 feet off the road surface and [the Doyles] are
allowed to store their equipment to the east of the newly installed wire
fence.
c. [The Doyles are] directed to move the fence corner with the “Shooting
Range” sign outside of the 60 foot easement.
d. [The Doyles] shall use reasonable efforts to keep domestic and farm
animals off the road surface, except when transporting animals across the
road.
5. [Saleem has] also demonstrated a clear legal or equitable right to the Easement.
6. [Saleem has] also shown that, without judicial intervention, [the Doyles] will
continue to violate those rights and that irreparable harm and injury has and will
continue to result, absent an injunction.
7. The court has also balanced the harms and considered the public interest and
believes that issuing a permanent injunction is appropriate.
CP at 235-36.
VII. ADDITIONAL MOTIONS AND FINAL ORDERS FOR AMENDED JUDGMENT OF CONTEMPT AND
AMENDED FINAL ORDER ON PERMANENT INJUNCTION
Following the entry of the July 17 orders, the Doyles filed another motion for contempt.
On October 2, 2017, the superior court granted the Doyles’ motion for contempt and issued the
2017 amended final judgment of contempt against Empress and Saleem along with the 2017
amended final order on permanent injunction.
In the amended judgment of contempt, the superior court finalized the order from July 17
and found that
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the court’s Order on the Motion for Contempt is distinct from the other claims and
issues in this matter. The court also finds that this Order of Contempt resolves a
key issue between the parties and that an appeal of the court’s order will not
interfere with the remaining issues.
CP at 691. The 2017 amended final order on permanent injunction expands the limitations in the
April 22, 2015 amended preliminary injunction.
Saleem appeals the 2017 amended final judgment of contempt and the 2017 amended final
order on permanent injunction. The Doyles cross appeal the 2017 amended final order on
permanent injunction.
ANALYSIS
I. PRELIMINARY INJUNCTION BOND AND AMENDED PRELIMINARY INJUNCTION-BOND
Saleem argues that the superior court erred by not requiring the Doyles to post a bond in
the 2013 preliminary injunction or the 2015 amended preliminary injunction because “the Doyles’
responsive papers indicate they also requested that the [superior] court restrain Empress and its
clients from disturbing the Doyles.” Br. of Appellant at 13. The Doyles argue that they did not
request injunctive relief in either the original motion for injunction or Saleem’s motions to
reconsider and amend and make permanent the preliminary injunction, and thus, they were not
required to post a bond, and the superior court did not err. Because Saleem was the party or
applicant asking for the preliminary injunction and amended injunction, not the Doyles, we hold
that the superior court did not err by requiring Saleem, not the Doyles, to post a bond.
A. LEGAL PRINCIPLES
RCW 7.40.080 states, in relevant part:
No injunction or restraining order shall be granted until the party asking it
shall enter into a bond, in such a sum as shall be fixed by the court or judge granting
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the order, with surety to the satisfaction of the clerk of the superior court, to the
adverse party affected thereby, conditioned to pay all damages and costs which may
accrue by reason of the injunction or restraining order.
(Emphasis added.)
CR 65(c) provides, in relevant part:
Except as otherwise provided by statute, no restraining order or preliminary
injunction shall issue except upon the giving of security by the applicant, in such
sum as the court deems proper, for the payment of such costs and damages as may
be incurred or suffered by any party who is found to have been wrongfully enjoined
or restrained.
(Emphasis added.)
We review interpretation of a statute de novo. Jametsky v. Olsen, 179 Wn.2d 756, 761,
317 P.3d 1003 (2014). When engaging in statutory interpretation, we endeavor to determine and
give effect to the legislature’s intent. Jametsky, 179 Wn.2d at 762. In determining the legislature’s
intent, we must first examine the statute’s plain language and ordinary meaning. Jametsky, 179
Wn.2d at 762. Legislative definitions included in the statute are controlling, but in the absence of
a statutory definition, we give the term its plain and ordinary meaning as defined in the dictionary.
American Cont’l Ins. Co. v. Steen, 151 Wn.2d 512, 518, 91 P.3d 864 (2004). In addition, we
consider the specific text of the relevant provision, the context of the entire statute, related
provisions, and the statutory scheme as a whole when analyzing a statute’s plain language. Lowy
v. PeaceHealth, 174 Wn.2d 769, 779, 280 P.3d 1078 (2012). If the statute is unambiguous, we
apply the statute’s plain meaning as an expression of legislative intent without considering other
sources. Jametsky, 179 Wn.2d at 762.
We review the interpretation of a court rule de novo and in the same manner as we review
statutes. North Coast Elec. Co. v. Signal Elec., Inc., 193 Wn. App. 566, 571, 373 P.3d 296 (2016).
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We give effect to the plain meaning of a rule as an expression of the drafter’s intent. Guardado v.
Guardado, 200 Wn. App. 237, 243, 402 P.3d 357 (2017).
B. SALEEM WAS THE PARTY ASKING FOR INJUNCTIVE RELIEF
RCW 7.40.080 states in relevant part that “[n]o injunction or restraining order shall be
granted until the party asking it shall enter into a bond . . . .” (Emphasis added.) The term “the
party” is unambiguous and is not subject to more than one reasonable interpretation. Jametsky,
179 Wn.2d at 762. Thus, we apply its plain meaning. Jametsky, 179 Wn.2d at 762.
CR 65(c) states in relevant part that “no restraining order or preliminary injunction shall
issue except upon the giving of security by the applicant . . . .” (Emphasis added.) The term “the
applicant” is unambiguous and is not subject to more than one reasonable interpretation. Jametsky,
179 Wn.2d at 762. Thus we apply its plain meaning. Jametsky, 179 Wn.2d at 762.
Here, Saleem requested a preliminary injunction in his initial complaint for injunctive relief
and damages and filed a motion for a preliminary injunction. The superior court granted the
motion and entered an order for preliminary injunction, citing Saleem’s motion and imposed a
$5,000 injunction bond.4 Under the language of RCW 7.40.080, Saleem was “the party asking”
that an injunction be granted. Under the language of CR 65(c), Saleem was “the applicant”
requesting the injunction. Thus, the superior court properly required Saleem, not the Doyles, to
post the injunction bond under RCW 7.40.080 and CR 65(c), and did not err. We hold that the
4
The order did not specifically state which party was required to post the bond; however,
subsequent orders clarified that Saleem was required to pay the bond. On appeal, neither party
disputes that Saleem was required to pay the bond.
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superior court did not abuse its discretion by requiring Saleem, not the Doyles, to post a bond when
Saleem was the party who moved for the preliminary injunction.
II. DIRECT APPEAL
“‘Whether contempt is warranted in a particular case is a matter within the sound discretion
of the trial court; unless that discretion is abused, it should not be disturbed on appeal.’” Moreman
v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995) (quoting In re Pers. Restraint of King, 110
Wn.2d 793, 798, 756 P.2d 1303 (1988)). A trial court abuses its discretion if its contempt decision
was manifestly unreasonable or based on untenable grounds. Holiday v. City of Moses Lake, 157
Wn. App. 347, 355, 236 P.3d 981 (2010). In addition, a contempt ruling based on an erroneous
view of the law or an incorrect legal analysis constitutes an abuse of discretion. In re Estates of
Smaldino, 151 Wn. App. 356, 364, 212 P.3d 579 (2009).
The contempt statutes distinguish between remedial or civil sanctions and punitive or
criminal sanctions for contempt of court. In re Interest of Silva, 166 Wn.2d 133, 141, 206 P.3d
1240 (2009). A “remedial sanction” is “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). A “punitive sanction” is imposed to punish past contempt of
court to uphold the court’s authority. RCW 7.21.010(2). To determine whether sanctions are
remedial or punitive, the “courts look not to the ‘stated purposes of a contempt sanction,’ but to
whether it has a coercive effect—whether ‘the contemnor is able to purge the contempt and obtain
his release by committing an affirmative act.’” In re Dependency of A.K., 162 Wn.2d 632, 646,
174 P.3d 11 (2007) (quoting Int’l Union, United Mine Works of Am. v. Bagwell, 512 U.S. 821,
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828, 114 S. Ct. 2552, 129 L. Ed. 2d 642 (1994). A remedial sanction is valid only if it is remedial
as opposed to punitive. See Silva, 166 Wn.2d at 141-42.
Notice and a hearing are required when a remedial sanction is sought. RCW 7.21.030. The
prosecutor must initiate an action for a punitive sanction by filing an information or a complaint,
and when filed, the party has a right to a trial and the right to due process must be afforded.
RCW 7.21.040(2)(a) and (3). When applicable, the superior court’s finding of contempt must be
supported by substantial evidence. In re Rapid Settlements, Ltd., 189 Wn. App. 584, 601, 359 P.3d
823 (2015). Substantial evidence is evidence that is sufficient to persuade a rational, fair-minded
person of the truth of the finding. Blackburn v. Dep’t of Soc. & Health Servs., 186 Wn.2d 250,
256, 375 P.3d 1076 (2016).
A. SALEEM’S CONTEMPT – NUMBER OF PARKED VEHICLES
Saleem argues that there was insufficient evidence that he exceeded the 30 vehicle
limitation, and thus, the superior court erred in finding him in contempt of the April 22, 2015 order
on preliminary injunction. He argues that at the time the court granted the injunction, Julius
Ledgett owned the adjoining parcel and he later acquired the Embratora property. Thus, Saleem
argues that most of the complained of vehicles were parked on the Embratora property not on the
Empress property, and he cannot be found to have violated the order for cars parked on the
adjoining property owned by a separate entity. Because substantial evidence supports the superior
court’s finding of contempt, we hold that the superior court did not err and did not abuse its
discretion.
The 2015 amended order on preliminary injunction states, “No more than 30 motor
vehicles may be on plaintiff’s property at the same time.” CP at 868. The superior court’s July 3,
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2017 order found Saleem in contempt of the 2015 amended order for preliminary injunction. The
court based its decision in part on the declarations filed by Timothy Doyle and Roger Farrar which
demonstrated that “the evidence supports that more than 30 cars were parked at the Empress
property on April 10, 2017, April 24, 2017, and June 9, 2017.” CP at 584.
The superior court also based its decision on the declaration of Lisa Slater, who designed
the additional parking on the Embratora property. Her declaration stated, “With regard to parking,
the intent of the approved plans is to add an additional 38 parking spaces to those already existing
on the Empress property. Indeed, the county has required as a condition of approval, that we
provide at least 38 on-site parking spaces.” CP at 584. The superior court’s order stated that “[t]he
Embratora parking spaces cannot be ‘on-site’ for the county, but ‘off-site’ for the contempt
motion.” CP at 584. The court’s order further stated, “Based on the Slater [d]eclaration, I do not
accept that the Embratora parking spaces are not on the Empress Estates’ property. Further, it is
Empress Estates’ activity that brings cars to the property.” CP at 584.
Based on these declarations, substantial evidence supports the superior court’s finding that
Saleem violated the 30 vehicle restriction. That finding supports the superior court’s conclusion
of law that Saleem was in contempt of the amended preliminary injunction. Thus, we hold that
the superior court did not abuse its discretion.
B. SANCTIONS – CIVIL FINE AND DAMAGES AWARD AGAINST SALEEM
Saleem argues that the imposed $500 civil fine and $1,500 damage award violate RCW
7.21.040, and should be vacated. We agree.
Here, when imposing the $500 civil fine against Saleem, the superior court stated that its
“intention in imposing a civil fine for [Saleem’s] civil contempt was and is to coerce [Saleem’s]
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future obedience to the amended preliminary injunction, and to a lesser extent, punish [Saleem]
for his violation.” CP at 75 (emphasis added). Because punitive sanctions are imposed to punish
past contempt and the court explicitly stated that the $500 civil fine was imposed to punish Saleem
for his past violations of the 2015 amended preliminary injunction, the civil fine is a punitive
sanction.
Under RCW 7.21.040(2)(a), an action to impose punitive sanctions must be initiated by a
prosecutor. A prosecutor did not initiate an action here. And the party subject to an action for
punitive sanctions must be afforded statutory due process protections. Saleem was not afforded
such protections. Thus, because the $500 civil fine is punitive, we hold that the superior court
abused its discretion by imposing the civil fine.
In its order awarding $1,500 in damages to the Doyles, the superior court found Saleem in
contempt and found that “[the Doyles are] damaged from the three violations in the combined
amount of $1,500.00.” CP at 585. But the superior court’s contempt order awarding damages did
not include a purge condition.
Under Rapid Settlements, a remedial sanction must contain a purge clause or it loses its
coercive character and becomes a punitive sanction. In re Rapid Settlements, Ltd., 189 Wn. App.
at 613. Because the superior court’s order did not include a purge condition, the damages award
was a punitive sanction. As discussed, a punitive sanction may only be initiated by the prosecutor
and the prosecutor did not initiate an action here. The superior court therefore abused its discretion
by awarding damages as a punitive sanction. Thus, we hold that the civil fine and damages award
were punitive sanctions. We reverse and vacate both sanctions.
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C. PERMANENT INJUNCTION
Saleem argues that under Littlefair v. Schulze,5 the superior court erred when it issued the
2017 amended final order on permanent injunction that allowed the Doyles to retain a wire fence
within the easement. Saleem claims that the Doyles maintained substantial improvements within
the easement area, including fencing, cars, trailers, and equipment. Saleem claims that while the
2017 amended final order on permanent injunction required the Doyles to remove most
encroachments, the court also found that because the road is only 12-14 feet wide, the Doyles
could maintain their current wire fence within the remaining 46 to 48 foot easement area. Saleem
claims that this ruling directly conflicts with this court’s holding in Littlefair. We disagree.
In Littlefair, we held that removal of a fence was necessary to avert termination of the
easement through adverse possession. Littlefair, 169 Wn. App. at 671. The easement at issue was
a 40-foot wide easement road and the servient landowner erected a fence that ran parallel to the
road. Littlefair, 169 Wn. App. at 662. The court reasoned that the easement in that case was
“regularly used for ingress, egress, and utilities, and [the servient landowner’s] fence appears to
be a permanent structure that could establish an adverse possession claim by [the servient
landowner].” Littlefair, 169 Wn. App. at 667. The court determined that the dominant landowner
was “entitled to have it removed to prevent loss of a major portion of the 40-foot easement.”
Littlefair, 169 Wn. App. at 667.
Construction of a fence in an easement area is not, in and of itself, a sufficiently inconsistent
use to constitute adverse possession. City of Edmonds v. Williams, 54 Wn. App. 632, 636-37, 774
5
169 Wn. App. 659, 278 P.3d 218 (2012).
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P.2d 1241 (1989). An adverse possession claim would only arise in this situation where a servient
owner creates an obstruction that clearly interferes with proper enjoyment of the easement. Cole
v. Laverty, 112 Wn. App. 180, 184, 49 P.3d 924 (2002).
Saleem claims that Littlefair prohibits the Doyles from placing a permanent or semi-
permanent structure or improvement within the easement. But Littlefair simply prohibits
permanent structures that may lead to the servient landowner’s establishment of an adverse
possession claim on the easement. Littlefair, 169 Wn. App. at 667 (emphasis added). Here, the
superior court’s amended final order on permanent injunction identified the location and existence
of the wire and cedar fences at issue. The superior court’s order stated that the Doyles are
precluded from “placing any permanent structures or improvements within the 60-foot easement
area; however this restriction does not include [their] existing wire fence.” CP at 280. This
language mirrors that in Littlefair. The superior court’s order also directed the Doyles to remove
the cedar fence and replace it with a wire fence that was to be 6 feet from the road surface of the
easement. This language also mirrors that in Littlefair because it ensures that all easement users
have proper access to the purpose of the easement, i.e., ingress and egress.
The wire fence does not inhibit Saleem’s right to use the road easement, nor does it
establish an adverse possession claim by the Doyles. Thus, we hold that the superior court did not
err in entering the amended final order on permanent injunction.
III. CROSS APPEAL
A. REMOVAL OF THE CEDAR FENCE AND GATE POSTS
The Doyles argue that the superior court’s conclusion of law that the cedar fence and gate
posts should be removed and the cedar fence should be replaced with a wire fence within the
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No. 50323-9-II
unused easement area, is not supported by the court’s findings of fact because the findings do not
provide any basis for requiring their removal. We hold that the superior court’s findings of fact
support its conclusion of law that the cedar fence and gate posts must be removed because they
are permanent structures within the easement area that interfere with Saleem’s lawful use of the
easement.
We review a court’s conclusions of law de novo to determine whether they are supported
by the findings of fact. State Farm Fire & Cas. Co. v. Justus, 199 Wn. App. 435, 448, 398 P.3d
1258, review denied, 189 wn.2d 1026 (2017). As discussed above, Littlefair prohibits permanent
structures that may lead to the servient landowner’s establishment of an adverse possession claim
on the easement. Littlefair, 169 Wn. App. at 667.
Here, the superior court found that the easement grants Saleem the right to use the easement
for commercial purposes, subject to approval by Cowlitz County, and precludes the Doyles from
interfering with Saleem’s lawful of the easement. Based on this finding, the court concluded the
following:
4. The Easement also precludes [the Doyles] from placing any permanent
structures or improvements within the 60-foot Easement area; however, this
restriction does not include Doyle’s existing wire fence, maintaining animals or the
storage of farm equipment and trailers off the road surface and behind the existing
wire fence, except:
a. [The Doyles] are directed to move the cedar fence on the east side of the
road surface within 60 days.
b. [The Doyles] shall be allowed to place a wire fence in the area of the
cedar fence so long as it is 6 feet off the road surface, and [the Doyles] are
allowed to store their equipment to the east of the newly installed wire
fence.
....
CP at 280.
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Based on the record, the superior court found that replacing the Doyles’ cedar fence with
a wire fence along the roadway would not be the kind of permanent structures that are prohibited
in Littlefair because the wire fences could easily be removed if the road needs to be widen in the
future. In the amended final order on permanent injunction, the superior court incorporated its
findings from the July 3, 2017 order. The court explained that “[s]uch fences are routinely placed
along the road to keep animals and children in, keep easement users out, and otherwise create a
barrier, but not a boundary, between the easement and private property. These fences are easily
removed should the need to widen the road arise in the future.” CP at 589. The court stated that
“should Doyle choose to erect a more substantial fence [than the wire fence along the roadway], it
will need to be erected outside of the 60-foot easement.” CP at 589. These findings of fact support
the superior court’s conclusion of law that the cedar fence and gateposts should be removed from
the easement and the cedar fence should be replaced with a wire fence. Thus, we hold that the
Doyles’ claim fails.
B. FENCES IN THE UNUSED EASEMENT
The Doyles argue that the superior court’s 2017 amended final order on permanent
injunction, which prohibits them from placing fences on the easement in the future, is moot and
not ripe for judicial determination. We disagree.
An issue presents a justiciable controversy when it presents (1) “‘an actual, present and
existing dispute, or the mature seeds of one,’” rather than a “‘possible, dormant, hypothetical,
speculative, or moot disagreement, (2) between parties having genuine and opposing interests,’”
(3) which involves direct and substantial interests, “‘rather than potential, theoretical, abstract or
academic’” interests, “‘and (4) a judicial determination of which will be final and conclusive.’”
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To-Ro Trade Shows v. Collins, 144 Wn.2d 403, 411, 27 P.3d 1149 (2001) (quoting Diversified
Industr. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973)). “Inherent in these four
requirements are the traditional limiting doctrines of standing, mootness, and ripeness, as well as
the federal case-or-controversy requirement.” To-Ro Trade Shows, 144 Wn.2d at 411.
The Doyles rely on Lakewood Racquet Club, Inc. v. Jensen6 to argue that the superior
court’s jurisdiction is limited to “interests that must be direct and substantial, rather than potential,
theoretical, abstract[,] or academic.” Br. of Resp. at 22. But here, the issue regarding the location
of the wire and cedar fences within the easement area is not academic because the Doyles’ fences
were problematic when the superior court issued the 2017 amended final order on permanent
injunction. Additional fences constructed within the easement would raise further issues creating
the need for a remedy by the court. Thus, the fence issue is ripe for judicial determination and we
hold that the Doyles’ claim fails.
C. NUMBER OF VEHICLES PARKED ON EMPRESS PROPERTY
The Doyles argue that the superior court erred when it allowed a total of 68 vehicles to
park on the Empress property in its 2017 amended final order on permanent injunction. We hold
that the superior court did not err.
We review a superior court’s decision following a bench trial to determine whether its
findings of fact are supported by substantial evidence and, in turn, whether those findings support
its conclusions of law. Endicott v. Saul, 142 Wn. App. 899, 909, 176 P.3d 560 (2008). The party
challenging a finding of fact bears the burden of showing that the record does not support the
6
156 Wn. App. 215, 223, 232 P.3d 1147 (2010).
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No. 50323-9-II
superior court’s finding. Scott’s Excavating Vancouver, LLC v. Winlock Props. LLC, 176 Wn.
App. 335, 342, 308 P.3d 791 (2013). Substantial evidence is the quantum of evidence sufficient
to persuade a fair-minded person of the truth of the finding. Endicott, 142 Wn. App. at 909. In
determining the sufficiency of the evidence, we consider only the evidence favorable to the
prevailing party. Endicott, 142 Wn. App. at 909. We defer to the superior court's evaluation of
the persuasiveness of the evidence. Endicott, 142 Wn. App. at 909.
Here, the superior court found, in relevant part:
Currently, the Empress Estates’ property has 30 spaces and the Embratora
property has 25 spaces. Therefore, there are 55 spaces available, allowing for 55
vehicles. Thirteen additional spaces are planned next to the Event Center. When
they are constructed the total spaces will be 68, allowing for 68 vehicles.
CP at 586-87. The amended final order on permanent injunction explicitly states that Saleem is
permitted “a total of 68 parking spaces as provided in the [s]ite [p]lan.” CP at 281.
The Doyles are responsible for explaining why the record does not support the superior
court’s finding, but instead they argue that 38 designated parking stalls on the site plan are located
outside the easement area. Because the Doyles fail to show that the superior court’s findings of
fact are not supported by the evidence, we hold that the superior court did not err when it allowed
a total of 68 vehicles to park on the Empress property as approved by the county.7
7
The Doyles’ argument appears to be a collateral attack of the county’s land use decision regarding
the Empress property. Because this issue is more properly raised in a land use petition act
proceeding, we do not address it further.
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No. 50323-9-II
D. SPEED BUMPS
The Doyles initially argue that the superior court’s amended final order on permanent
injunction requiring them to remove a speed bump is not supported by any evidence that the speed
bump interferes with Saleem’s easement rights. However, the Doyles conceded at oral argument
that the superior court properly ruled that removal of a speed bump was appropriate. Thus, we
hold that the superior court did not err.
CONCLUSION
We hold that the superior court did not abuse its discretion by requiring Saleem, as the
party asking for both a preliminary injunction and an amended preliminary injunction, to post a
bond while not requiring the Doyles to post a bond. We also hold that the superior court erred by
imposing a $500 civil fine and a $1,500 damage award against Saleem for contempt violations
because they were punitive sanctions and vacate both sanctions. We further hold that the superior
court did not abuse its discretion by holding Saleem in contempt for violating the 2015 amended
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No. 50323-9-II
order for preliminary injunction by allowing more than 30 vehicles to park on his property. As to
the Doyles’ cross appeal, we hold that all of their arguments fail. Thus, we affirm in part, reverse
in part, and vacate the sanctions.
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 in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
LEE, A.C.J.
RUMBAUGH, J.P.T.
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