Ernest Emmert v. Robert Garten ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
August 4, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
ERNEST EMMERT and THERESA No. 52766-9-II
EMMERT, husband and wife,
Respondents,
v.
ROBERT GARTEN and JANE DOE UNPUBLISHED OPINION
GARTEN, husband and wife, and HAWN
GARTEN, and all other persons or parties
unknown claiming any right, title, lien, or
interest in the real estate described in the
complaint herein,
Appellants.
CRUSER, J. — Robert Garten, Jane Doe Garten, husband and wife, and Hawn Garten
(collectively, “Gartens”) appeal the trial court’s order finding them in contempt of court for
violating a court order. The Gartens argue that the trial court erred because (1) the trial court’s
finding that the Gartens violated the trial court’s order is not supported by substantial evidence;
(2) even if they violated the trial court’s order, substantial evidence does not support a finding that
they did it intentionally; (3) the order did not include a purge clause; (4) the court awarded attorney
fees and costs to Ernest Emmert and Theresa Emmert, husband and wife, (collectively,
“Emmerts”); and (5) the court did not award them attorney fees and costs from the injunction bond.
The Gartens also request attorney fees and costs on appeal, as do the Emmerts.
We conclude that substantial evidence supports the trial court’s contempt finding. We hold
that the trial court did not abuse its discretion in granting attorney fees and costs to the Emmerts,
and we decline to decide the Gartens’ remaining challenges to the contempt order and their claim
No. 52766-9-II
that they are entitled to attorney fees and costs from the injunction bond. We also decline the
Gartens’ request for attorney fees and costs on appeal. Finally, we award attorney fees and costs
on appeal to the Emmerts.
Accordingly, we affirm.
FACTS
A. BACKGROUND
The Emmerts purchased a waterfront property in Jefferson County in 1995 via statutory
deed. In 2013, the Gartens purchased the tidelands parcel directly south of the Emmerts’ waterfront
parcel.1 The Gartens also purchased the neighboring waterfront parcel, which was directly east of
the Emmerts’ property. Thus, the Emmerts shared their southern and eastern boundary lines with
the Gartens.
In 2015, a dispute between the neighbors erupted about the location of the
northern/southern boundary line between their two properties. The Emmerts disassembled a shelter
that the Gartens had built on the beach, believing it was located beyond the northern boundary of
the Gartens’ tidelands property, therefore within the southern part of their property. The Gartens
confronted the Emmerts about the destruction of the shelter and began yelling and screaming at
the Emmerts, claiming that the shelter was located on their tidelands property.
B. PRETRIAL EVENTS
The Emmerts filed suit against the Gartens. The Emmerts sued for trespass, emotional
distress, and interference with the quiet enjoyment of their property. The Emmerts asked for a
judgment against the Gartens in the amount proven at trial, as well as attorney fees and costs. The
1
This tidelands parcel is directly below the portion of the beach owned by the Emmerts.
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No. 52766-9-II
Emmerts requested the court enter an order establishing the boundary line between the parties’
properties as set forth in their deed and a survey recorded in 1995, or in the alternative, by adverse
possession. The Emmerts’ deed relied on the 1995 survey as establishing their boundary lines. The
Emmerts also requested a restraining order against the Gartens from trespassing on their property
and using threatening language against the Emmerts.
In their answer to the Emmerts’ complaint, the Gartens contested the Emmerts’ ownership
of the disputed property, claiming they had ownership via quit claim deed. The Gartens claimed
that the southern boundary of the Emmerts’ parcel was actually higher, or farther north, than the
boundary line as described in the Emmerts’ deed. The Gartens also claimed the Emmerts
committed trespass and claimed that they were entitled to damages and attorney fees and costs.
The Emmerts moved for a preliminary injunction to restrain the Gartens from trespassing,
damaging, or occupying their property as described in their deed and the 1995 survey. On July 22,
2016, the trial court granted the Emmerts’ motion and ordered the Gartens to “cease and desist
crossing the boundary line established by the 1995 survey and maintained by Emmerts.” Clerk’s
Papers (CP) at 38. The trial court also ordered the Emmerts to post a surety bond as security in the
amount of $10,000 to the registry of court.
The Emmerts moved for partial summary judgment, arguing that they had legal ownership
of the disputed property by deed, or in the alternative, by adverse possession. The Emmerts also
argued that they were entitled to damages because the Gartens’ defense that they owned the
disputed property was frivolous. The trial court denied the Emmerts’ motion.
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The Emmerts moved for reconsideration of their summary judgment motion. Although
their complaint and their summary judgment motion relied on their deed and the 1995 survey for
their proposed boundary line, the Emmerts relied on a 2016 survey performed by Kathleen Cassou
(the “Cassou Survey”) in their reconsideration motion. The Emmerts asked the court to rule that
their correct southern boundary line was the boundary line established in the Cassou Survey,
referred to as the balanced government meander line. This line, the “Cassou meander line,” is
located north of the boundary line described in the Emmerts’ deed and the 1995 survey.
The Emmerts also asserted in their motion for reconsideration that their claim of adverse
possession pertained to only the strip of land south of the Cassou meander line and north of the
boundary line established by their deed and the 1995 survey. The Emmerts claimed that they would
pursue their claim of adverse possession at trial.
On April 19, 2017, the trial court granted the Emmerts’ motion for reconsideration. The
court’s order stated, however, that title to the property “legally described in the Complaint is
hereby quieted in” the Emmerts. Id. at 217. The court’s order stated that the Gartens were
“permanently ordered to cease and desist crossing the boundary line at the balanced government
meander line confirmed by the Cassou Survey.” Id. at 217. Thus, the order was internally
inconsistent. The Emmerts’ complaint relied on the line set forth in their deed, which was south of
the Cassou meander line.
The trial court also entered a contemporaneous memorandum opinion. The court’s
memorandum stated that the Cassou meander line established the southern boundary of the
Emmerts’ property and the northern boundary of the Gartens’ property. The court ruled that the
Emmerts’ deed improperly granted the Emmerts additional property south of the Cassou meander
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No. 52766-9-II
line. The court also repeated its order that the Gartens not cross the Cassou meander line. The issue
of adverse possession to the area south of the Cassou meander line was reserved for trial. The court
also ordered the bond filed by the Emmerts to be exonerated.
The Gartens moved for clarification and reconsideration of the court’s April 19, 2017 order.
The Gartens pointed out the inconsistency within the trial court’s order and between the trial
court’s order and memorandum. The Gartens asserted that “it appears that the Court’s intent was
to set the southern boundary” as the Cassou meander line in its order and memorandum. Id. at 222.
However, this contradicted the trial court’s order that the Emmerts be granted title to the property
as pled in their complaint because their complaint was based on the property description in their
deed. The Gartens asked the court to rectify the conflict by reversing its order or by correcting the
conflict between the order and memorandum.
In response to the Gartens’ motion for reconsideration and clarification, the court entered
a second memorandum opinion on June 19, 2017. The court clarified that the April 19 order “was
intended to simply carry out the terms” of its first memorandum opinion. Id. at 229. The court
concluded by asserting that it would consider a revised order presented to carry out its April 19
memorandum opinion, but the “terms and extent of the Court’s ruling in the Opinion are clear.
[Gartens’] motion is otherwise denied.” Id. at 230.
C. TRIAL PROCEEDINGS
The case proceeded to trial on the limited issues of (1) whether the Emmerts adversely
possessed the land south of the Cassou meander line down to the boundary as established by their
deed, (2) whether the Gartens committed trespass by building a shelter on the Emmerts’ property,
and (3) whether the Gartens’ defense was frivolous.
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During closing argument at trial, the Gartens briefly raised a question related to the location
of the east/west boundary between the Gartens’ and Emmerts’ parcels. This area was termed the
“deed overlap.”2 Report of Proceedings (RP) (Mar. 29, 2018) at 44, 45, 54. The Cassou Survey
identified a strip of land on the east side of the Emmerts’ property where the legal description of
the Gartens’ property in the Gartens’ deed overlapped with the legal description of the Emmerts’
property in the Emmerts’ deed.3 Based on the record provided to us, the Gartens raised this issue
solely in response to the Emmerts’ trespass claim and the Emmerts’ claim that the Gartens raised
a frivolous defense. At no time did the Gartens ask the trial court to settle or quiet title to the area
where the deeds overlap in their favor. Rather, the Gartens stated the deed overlap was relevant to
show that the Gartens were not trespassing when they built the structure on the beach because they
had an ownership interest to the area where they built the shelter. The Gartens also argued that
their claim that they owned the disputed property was not frivolous because the legal description
of their land encompassed the area where they built the structure.
2
A deed overlap occurs when the legal descriptions of adjoining parcels conveyed by deed overlap.
Noyes v. Douglas, 39 Wash. 314, 315, 81 P. 724 (1905). Such conveyances create an overlap in
ownership rights.
3
The Gartens also discussed the deed overlap in their trial brief. In their brief, the Gartens asserted
that they were “advancing [their] claims at trial to offer evidence to defend the claims against them.
However, the evidence [would] show a deed overlap that rebuts the trespass and frivolous defense
claims.” CP at 231. The Gartens further argued that the evidence would show a deed overlap on
the area where the Emmerts accused the Gartens of trespassing. The Gartens claimed that they
would introduce evidence “that the overlap exists, and [they] [have] superior title to that area.” Id.
at 245.
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The trial court announced its ruling following closing arguments on March 29, 2018. The
court reaffirmed its decision on the Emmerts’ motion for reconsideration of summary judgment.
The court ruled that the Emmerts did not adversely possess the land south of the Cassou meander
line. At trial, the court and both parties referred to this area as the “hashed area” because the Cassou
Survey contained hashmarks over the area the Emmerts claimed by adverse possession to signify
the property that was in dispute. E.g., CP at 201; RP (Mar. 29, 2018) at 7, 20, 50, 53, 54, 64, 65,
70.
The court also found that there was insufficient evidence to establish trespass by the
Gartens. The court reasoned that the Gartens did not wrongfully use the property because they
thought it was theirs.
The trial court then asked the parties if it had “missed anything” in its ruling, and the
following colloquy ensued:
[Gartens]: So, Your Honor, with your ruling, then, does that mean the injunction
that’s still in place prohibiting Mr. Garten and his family from going to the hashed
area is now dissolved?
[Court]: Yes.
[Gartens]: Then I have nothing else.
[Court]: Mr. Nichols, have I missed anything?
[Emmerts]: Is the injunction still in place above the hashed area?
[Court]: Is it necessary?
....
[Emmerts]: I believe [it is] necessary, Your Honor.
[Court]: What is your position, Mr. Seaman?
[Gartens]: Your Honor, I would like to talk to my client about that. It may be
something that we could work something out without having to come back to you
for any further discussions with the Court, so I’m not going to ask the Court to
dissolve that right now.
[Court]: Okay. I’ll just leave that as it is, but if you guys can talk; and if there has
to be an argument about it, we can deal with it later, but I’ll leave that as it stands.
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No. 52766-9-II
RP (Mar. 29, 2018) at 70-71. Therefore, the injunction prohibiting the Gartens from entering the
Emmerts’ property above their southern boundary, or the Cassou meander line, remained in place.
D. CONTEMPT PROCEEDINGS
On July 16, 2018, the Emmerts moved to hold the Gartens in contempt of court for entering
their property in violation of the trial court’s April 19, 2017 order, which was reaffirmed in the
court’s oral decision on March 29, 2018. As discussed above, the April 19, 2017 order granting
the Emmerts’ motion for reconsideration permanently ordered the Gartens to cease and desist from
entering the Emmerts’ property above the Cassou meander line. On March 29, 2018, the court
reaffirmed its decision on reconsideration at trial and determined it would not dissolve the
injunction prohibiting the Gartens from entering the Emmerts’ property above the Cassou meander
line. The Emmerts also requested the court impose remedial sanctions and award attorney fees and
costs.
The Emmerts claimed that the Gartens entered their property in violation of the order on
five occasions between June 30, 2018 and July 5, 2018. The Gartens were served with the motion
on July 16. The Emmerts filed a supplemental declaration documenting the Gartens entering their
property on multiple occasions after July 16. The Emmerts provided the court with pictures of the
Gartens parking cars on their property and a boat on their beach.
The court heard argument on the Emmerts’ motion.4 The Gartens argued that they did not
intentionally disobey the court’s order because they entered only the area where they allegedly had
4
The parties also requested the court enter a final judgment at the contempt hearing. Consequently,
the trial court did not enter a written order as well as its findings of fact and conclusions of law
until November 21, 2018, seven months after the conclusion of trial.
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No. 52766-9-II
an ownership interest due to the deed overlap. The Gartens claimed that ownership of the deed
overlap was an issue that was never resolved at trial. Therefore, the Gartens contended, it was still
unclear as to whether the Emmerts owned the property encompassed in the deed overlap. The
Gartens then changed their argument, claiming they believed that they owned the land
encompassed in the deed overlap area because they allegedly prevailed on this issue at trial.
In response, the Emmerts asserted that the trial court never ruled that the Gartens owned
the property encompassed in the deed overlap. The Emmerts argued that even if the court had ruled
that the Gartens owned the property within the deed overlap, the Gartens entered a portion of their
property that was not encompassed in the deed overlap.
The court addressed the Gartens’ assertion that they owned the area encompassed in the
deed overlap and disagreed.
[Court]: So I’m just thinking out loud that when I made the summary judgment
decision, I said Emmerts own everything north of [the Cassou] meander line; right?
[Gartens]: Yes.
[Emmerts]: Yes.
RP (Nov. 2, 2018) at 98. The court further stated the following:
When I decided that the Emmerts’ property went down to that meander line, my
vision at the time was the Emmerts owned everything above that; and when we
came into trial, the issues were simply was there a trespass, was there a frivolous
Defense, and adverse possession of the [tidelands].
RP (Nov. 2 2018) at 104.
The court granted the Emmerts’ motion for contempt. The court stated that it reviewed its
oral ruling made on March 29, 2018, which reaffirmed its April 19, 2017 order granting the
Emmerts’ motion for reconsideration, and found that there was not any confusion regarding the
injunction that remained on the Emmerts’ property above the Cassou meander line. The court
found that the Gartens were promptly notified that they were entering the Emmerts’ property when
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No. 52766-9-II
served with the Emmerts’ contempt motion, and they continued to enter the property above the
Cassou meander line. The court declined to impose punitive sanctions or remedial sanctions, but
awarded the Emmerts attorney fees and costs.
The court also entered a written order. The order stated that the Gartens were in contempt
of court for violating the court’s April 19, 2017 and March 29, 2018 orders on at least five
occasions. The written order also ordered the Gartens to pay the Emmerts’ attorney fees and costs
incurred as a result of the contempt proceeding.
The Gartens appeal the trial court’s order of contempt.
DISCUSSION
I. CONTEMPT OF COURT
We review a trial court’s contempt ruling for an abuse of discretion. Dep’t of Ecology v.
Tiger Oil Corp., 166 Wn. App. 720, 768, 271 P.3d 331 (2012). An abuse of discretion is present
only if there is a clear showing that an exercise of discretion was manifestly unreasonable, based
on untenable grounds, or based on untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12,
26, 482 P.2d 775 (1971). We will uphold the trial court’s contempt finding if a proper basis for
contempt can be found. Tiger Oil Corp., 166 Wn. App. at 768.
Contempt of court consists of any intentional disobedience “of any lawful judgment,
decree, order, or process of the court.” RCW 7.21.010(1)(b). Where the court’s basis for its finding
of contempt is disobedience of a court order, “the order must be strictly construed in favor of the
contemnor.” Tiger Oil Corp., 166 Wn. App. at 768 (quoting Stella Sales, Inc. v. Johnson, 97 Wn.
App. 11, 20, 985 P.2d 391 (1999)). In a contempt proceeding, “an order will not be expanded by
implication beyond the meaning of its terms when read in light of the issues and the purposes for
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No. 52766-9-II
which the suit was brought.” Johnston v. Beneficial Mgmt. Corp. of Am., 96 Wn.2d 708, 712-13,
638 P.2d 1201 (1982).
The trial court’s findings must establish a plain violation of the order and must be supported
by substantial evidence. In re Rapid Settlements, Ltd., 189 Wn. App. 584, 601-02, 359 P.3d 823(2015). “‘Substantial evidence’ means 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) (internal quotation marks omitted) (quoting Hegwine v. Longview
Fibre Co., 162 Wn.2d 340, 353, 172 P.3d 688 (2007)). “[T]he moving party has the burden of
proving contempt by a preponderance of the evidence.” In re Marriage of James, 79 Wn. App.
436, 442, 903 P.2d 470 (1995).
Here, the record unquestionably supports the violations found by the trial court. The
Emmerts documented the Gartens on their property on multiple occasions after the trial court
ordered the Gartens to cease and desist from crossing the Cassou meander line and entering the
Emmerts’ property. But the Gartens argue that the trial court’s contempt order should be reversed
for several reasons. We address their arguments in turn.
A. VIOLATION OF THE APRIL 19 ORDER
The Gartens argue that there was no violation of a court order because (1) the court had
previously dissolved the injunction in the area where they were found in contempt for entering,
and (2) the trial court awarded the Gartens legal title to the area where they were found in contempt
for entering. We disagree.
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No. 52766-9-II
1. THE TRIAL COURT DID NOT DISSOLVE THE INJUNCTION
The Gartens first argue that there was no violation of a court order because the court
previously dissolved the injunction that prohibited the Gartens from crossing the Cassou meander
line and entering the Emmerts’ property, as set forth in the April 19, 2017 order that the court
found they had violated. The Gartens are mistaken.
On July 22, 2016, the trial court granted the Emmerts’ motion for a preliminary injunction,
which ordered the Gartens to “cease and desist” from crossing the boundary line established by
their deed and the 1995 survey. CP at 38. On April 19, 2017, the court granted the Emmerts’
motion for reconsideration of its order on summary judgment and ordered the Gartens to
“permanently … cease and desist” from crossing the Cassou meander line, the boundary line
separating their properties.5 Id. at 217 (emphasis added). In its memorandum opinion on the order,
the court repeated its order that the Gartens were not to cross the Cassou meander line. In the
court’s second memorandum opinion, entered on June 19, 2017 in response to the Gartens’ request
for clarification, the court cleared any confusion from its April 19 order and memorandum by
asserting that the April 19 order “was intended to simply carry out the terms” of the
contemporaneous memorandum opinion. Id. at 229.
On March 29, 2018, the trial court reaffirmed its April 19, 2017 order and memorandum
opinion following closing arguments at trial. At this time, the trial court ordered the injunction to
be dissolved below the Cassou meander line. The Emmerts asked the court whether the injunction
5
The court’s order effectively altered the court’s previous preliminary injunction order because
the boundary line as established by the Emmerts’ deed is further south than the Cassou meander
line.
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No. 52766-9-II
was still in place above the Cassou meander line, stating that it was necessary. When the court
asked the Gartens for their position on the matter, the following took place:
[Gartens]: Your Honor, I would like to talk to my client about that. It may be
something that we could work something out without having to come back to you
for any further discussions with the Court, so I’m not going to ask the Court to
dissolve that right now.
[Court]: Okay. I’ll just leave that as it is, but if you guys can talk; and if there has
to be an argument about it, we can deal with it later, but I’ll leave that as it stands.
RP (Mar. 29, 2018) at 70-71 (emphasis added).
The Gartens mischaracterize the above colloquy by claiming that the court “invited the
parties to come back to Court to address any issue concerning whether the injunction remained”
above the Cassou meander line. Br. of Appellant at 29. It is clear from the record that there was
not a question of whether the injunction prohibiting the Gartens from crossing the Cassou meander
line remained. The Gartens did not challenge the Emmerts’ request to keep the injunction in place
above the Cassou meander line, stating that they would not request the court to dissolve the
injunction. The court expressly stated that it would leave the injunction prohibiting the Gartens
from crossing the Cassou meander line “as it stands” and invited the parties to return only “if there
has to be an argument about it.” RP (Mar. 29, 2018) at 71.
Therefore, we find that the Gartens’ argument that they did not violate a court order has no
merit because the trial court did not dissolve the injunction above the Cassou meander line, where
the Gartens were found in contempt for entering.
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No. 52766-9-II
2. THE GARTENS DID NOT HAVE LEGAL TITLE TO THE LAND ON WHICH THE CONTEMPT ORDER
WAS BASED
The Gartens claim that there was no violation of a court order because the trial court
awarded the Gartens legal title to the area that the court found that they wrongfully entered,
referred to as the deed overlap area.6 Again, the Gartens are mistaken.
As noted above, the Cassou Survey shows that on the east side of the Emmerts’ property
and the west side of the Gartens’ property, there is a small strip of land where the legal descriptions
of the Emmerts’ and the Gartens’ properties in their deeds allegedly overlap. However, the Gartens
never disputed the location of the Emmerts’ eastern boundary line as described in the Emmerts’
deed. The boundary line at issue in this case was the Emmerts’ southern boundary. Therefore, the
trial court was never asked to settle a dispute about the location of the Emmerts’ eastern boundary
line or to quiet title to the area where the Gartens claimed that their deeds overlapped.
The Gartens claim that they raised the question of who owned the property encompassed
in the alleged deed overlap area at trial, and they prevailed. Somehow, the Gartens twist events at
trial and the court’s final ruling as altering the Emmerts’ eastern boundary line above the Cassou
meander line and quieting title of the land in the deed overlap to the Gartens. The record, however,
belies this claim. As noted above, the Gartens did not raise the issue of a deed overlap as a
standalone issue or claim. Moreover, even if the Gartens had raised the issue of a deed overlap as
a standalone issue or claim, the Gartens never made a counter claim to quiet title to the land
encompassed in the deed overlap.
6
At the hearing on the Emmerts’ contempt motion, the parties disputed whether the Gartens
entered onto only the property encompassed in the alleged deed overlap. The trial court did not
make a factual finding on this issue.
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No. 52766-9-II
And even if the Gartens had moved to amend their pleadings to make it a counter claim,
the trial court never addressed or ruled on the issue. The Gartens’ counsel conceded this fact. At
the contempt hearing, the Gartens’ counsel agreed with the court that the issue was never resolved,
and that the court never made a ruling on the alleged deed overlap issue. Thus, the Gartens could
not have believed when they entered the property that gave rise to the contempt finding that they
had been awarded that property.
Therefore, the Gartens’ claim that they did not violate a court order because they entered
an area where they had legal title lacks merit.
B. SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT’S FINDING THAT THE GARTENS
INTENTIONALLY VIOLATED THE APRIL 19 ORDER
The Gartens also contend that even if they violated the trial court’s order, their violations
were not intentional because they did not understand where they were prohibited from entering.
The Gartens argue that they did not understand what area they were prohibited from entering due
to differing surveys containing a hashed area, inconsistencies in the court’s orders, and the deed
overlap. The Gartens argue that due to their confusion, there was not substantial evidence of an
intentional violation. We disagree.
RCW 7.21.010(1) states that contempt of court must be intentional. For a contemnor to act
intentionally, he or she must have actual or constructive “knowledge of the existence and
substantive effect of the court’s order or judgment.” In re Estates of Smaldino, 151 Wn. App. 356,
365, 212 P.3d 579 (2009). “[A] person who is properly served is deemed to have knowledge.” Id.The Gartens’ argument that substantial evidence does not support a finding that they
intentionally violated the trial court’s order appears to be based on the trial court’s ruling on
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No. 52766-9-II
trespass at trial.7 At trial, the court ruled that there was insufficient evidence of trespassing because
when the Gartens used the Emmerts’ property, they thought it was their own. Therefore, there was
insufficient evidence to establish intentional trespass.8
As noted above, to rebut the Emmerts’ trespass claim, the Gartens argued that they had an
ownership interest to where they built the shelter because it was built in the area where their deed
overlapped with the Emmerts’ deed. In an effort to show their confusion, the Gartens claim that
the trial court’s ruling on the trespass claim could easily be interpreted as ruling that they have
senior title to the property within the deed overlap. The Gartens contend that their deed overlap
theory is “the most logical legal rational why trespass didn’t[] occur” because, the Gartens allege,
the trial court rejected their other defense to trespass, jus publicum. Br. of Appellant at 31. In other
words, the Gartens assert that because the court concluded that they didn’t trespass and rejected
their jus publicum theory, one could easily make the inference that the court found their deed
overlap theory to have merit.
7
The Gartens’ argument is that (1) because the trial court found no evidence of trespass at trial
when the Gartens did enter the deed overlap area, we should assume that the Gartens believed they
owned the deed overlap area; (2) because we should assume that the Gartens believed they owned
the deed overlap area, the trial court must have ruled that they did own the deed overlap area; (3)
because the Gartens entered only in the deed overlap area after trial, they were not in contempt.
8
To prove intentional trespass, one must show “‘(1) an invasion of property affecting an interest
in exclusive possession, (2) an intentional act, (3) reasonable foreseeability that the act would
disturb the plaintiff’s possessory interest, and (4) actual and substantial damages.’” Grundy v.
Brack Family Tr., 151 Wn. App. 557, 567-8, 213 P.3d 619 (2009) (quoting Wallace v. Lewis
County, 134 Wn. App. 1, 15, 137 P.3d 101 (2006)).
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No. 52766-9-II
The Gartens’ assumption relies on mischaracterizations of the record. The trial court
explicitly did not reject the Gartens’ jus publicum argument.9 Gartens’ statement that their deed
overlap theory was “the most logical legal rational why trespass didn’t[] occur” completely
disregards the trial court’s ruling that there was insufficient evidence to establish trespass because
the Gartens thought the property was theirs. Br. of Appellant at 31. Therefore, the Gartens’
assertion that the trial court’s ruling on trespass at trial caused confusion regarding ownership of
the area encompassed in the deed overlap is baseless.
The Gartens also argue that they were confused about where they were prohibited from
entering because the trial court’s pretrial orders were unclear. The court’s April 19, 2017 order
was inconsistent with its memorandum opinion because the order stated that the Emmerts’
southern boundary was as described in their deed and complaint, but the memorandum opinion
stated that the southern boundary was the Cassou meander line. However, the court’s inconsistency
was remedied through the court’s second memorandum opinion, where the court clarified that the
Cassou meander line was the correct boundary and that the April 19, 2017 order “was intended to
simply carry out the terms of the Memorandum Opinion.” CP at 229.
Furthermore, the Gartens’ claim of confusion regarding the court’s orders is rebutted by
their counsel’s statements in closing argument at trial. For example, counsel acknowledged that
9
After ruling that there was insufficient evidence to establish trespass, the court stated the
following:
And I'm not going to get into the Jus Publicum Doctrine and all that kind of
stuff. I mean, that might be another reason, but even without considering that and
the public’s right to use tidelands, and so on, I don’t think that there was evidence
of trespass.
RP (Mar. 29, 2018) at 67.
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the court previously ruled that Emmert “owns down to the [Cassou] meander line,” and they agreed
with the court when it ruled that the Cassou meander line was the Emmerts’ southern boundary.
RP (Mar. 29, 2018) at 52. The Gartens’ claim of confusion regarding the area encompassed in the
hashed area is also rebutted by counsel’s statements in closing argument. The court and counsel
repeatedly referred to the hashed area as the area on the Cassou Survey below the Cassou meander
line that was disputed at trial.
Here, the superior court’s finding that the Gartens intentionally entered the Emmerts’
property is supported by substantial evidence. A plain reading of the record supports the trial
court’s finding that there was no confusion regarding the remaining injunction on the Emmerts’
property or where the Gartens were prohibited from entering. Furthermore, even if the Gartens’
assertion that they were confused about the remaining injunction or where they were prohibited
from entering had merit, the trial court found that the Gartens were promptly notified that they
were entering the Emmerts’ property when the Emmerts served their contempt motion on the
Gartens, and the Gartens still continued to enter the property above the Cassou meander line. This
finding is uncontested.
Accordingly, we hold that the evidence supporting the court’s finding of contempt is
sufficient to persuade a rational, fair-minded person that the Gartens intentionally disobeyed the
court’s previous order.
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C. ATTORNEY FEES
The Gartens argue that the trial court abused its discretion by awarding attorney fees and
costs to the Emmerts because the court should not have found the Gartens in contempt. We
disagree.
We review a trial court’s award of attorney fees for an abuse of discretion. Rapid
Settlements, Ltd., 189 Wn. App. at 607. A court may “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.” RCW
7.21.030(3); see also R.A. Hanson Co. v. Magnuson, 79 Wn. App. 497, 505, 903 P.2d 496 (1995).
Here, the trial court did not abuse its discretion when it found the Gartens in contempt of
court. The Emmerts incurred attorney fees and costs in connection with the contempt proceeding.
Under RCW 7.21.030(3), the trial court is permitted to order the Gartens to pay for the Emmerts’
fees incurred as a result of the proceeding. Accordingly, we affirm the trial court’s award.
D. REMAINING ISSUES
The Gartens identify several more issues pertaining to the contempt order and the court
proceedings leading to the contempt order. The Gartens argue that the trial court erred by failing
to set forth a purge clause in the contempt order and by failing to make a finding that the Gartens
intentionally violated the contempt order. The Gartens also argue that the trial court abused its
discretion by declining to award the injunction bond to the Gartens to cover their damages and
costs. We decline to consider these issues.
Under RAP 10.3(a)(6), an appellant must provide “argument in support of the issues
presented for review, together with citations to legal authority and references to relevant parts of
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No. 52766-9-II
the record.” The Gartens cite to no legal authority supporting their remaining claims, and in the
limited instances where they do provide argument in support of their claims, their argument lacks
any cogency. “Without adequate, cogent argument and briefing, this court should not consider an
issue on appeal.” State v. Tinker, 155 Wn.2d 219, 224, 118 P.3d 885 (2005) (quoting Schmidt v.
Cornerstone Invs., Inc., 115 Wn.2d 148, 160, 795 P.2d 1143 (1990)).
Furthermore, in regard to the Gartens’ argument that they are entitled to the injunction
bond to cover their damages and costs, the Gartens never appealed the trial court’s decision
pertaining to the injunction bond. The Gartens fail to mention that their argument is based on a
separate trial court order, let alone explain how the trial court’s decision pertaining to the injunction
bond is reviewable pursuant to RAP 2.4(b) or RAP 2.4(c).
Due to the Gartens’ violations of RAP 10.3(a)(6), we do not consider these arguments.
II. ATTORNEY FEES ON APPEAL
Both parties request attorney fees and costs on appeal pursuant to RAP 18.1(a).10 We deny
the Gartens’ requests for fees, but award the Emmerts’ fees because the Gartens’ appeal is
frivolous.
RAP 18.1(a) entitles a party to reasonable fees and costs if an applicable law grants that
right. RCW 7.21.030(3) permits an appellate court to assess fees and costs against the party found
10
The Gartens also argue that they are entitled to fees because the Emmerts committed procedural
bad faith. However, the record does not reflect that the Gartens requested fees due to the Emmerts’
bad faith in bringing their contempt motion at the trial court level. Because the Gartens failed to
raise their argument below, the Gartens cannot raise it on appeal. RAP 2.5(a); see also Elliot Bay
Seafoods, Inc. v. Port of Seattle, 124 Wn. App. 5, 15, 98 P.3d 491 (2004) (failing to ask for attorney
fees at trial waives that claim on appeal).
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in contempt of court pursuant to a contempt proceeding. This includes an award of attorney fees
incurred in defending an appeal of a contempt order. Magnuson, 79 Wn. App. at 502.
Here, the Gartens were found in contempt at the trial court level, and they are not defending
an appeal of a contempt order. Therefore, RCW 7.21.030(3) does not grant them the right to
reasonable attorney fees and costs under RAP 18.1(a). Accordingly, we deny the Gartens’ request
for attorney fees and costs on appeal.
In regard to the Emmerts’ request for fees on appeal, they failed to cite to the applicable
law that grants their right to attorney fees on appeal or make any supporting argument, failing to
meet the requirement of RAP 18.1(a).
However, under RAP 18.9(a), an appellate court may, on its own initiative, award
respondent’s attorney fees for having to defend against a frivolous appeal. West v. Thurston
County, 169 Wn. App. 862, 867-68, 282 P.3d 1150 (2012). “An appeal is frivolous when the appeal
presents no debatable issues on which reasonable minds could differ and is so lacking in merit that
there is no possibility of reversal.” Stiles v. Kearney, 168 Wn. App. 250, 267, 277 P.3d 9 (2012).
The Gartens pursued an appeal without merit. The Gartens’ main assignment of error
hinges on their own illogical assumptions, mischaracterizations of the record, and
misunderstanding of the law. The resolution of their remaining claims is either based on an order
that is not subject to review because the Gartens did not appeal it, or not subject to review due to
the Gartens’ inadequate briefing and failure to comply with the rules of appellate procedure.
Therefore, we exercise our discretion and award the Emmerts fees and costs for defending
against this frivolous appeal.
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CONCLUSION
We hold that substantial evidence supports the trial court’s contempt finding and the trial
court did not abuse its discretion when awarding attorney fees and costs to the Emmerts. Because
the Gartens failed to comply with RAP 10.3(a)(6), we do not consider their challenges to the
contempt order or their argument that they are entitled to fees from the injunction bond. We also
decline the Gartens’ request for fees and costs on appeal and grant the Emmerts fees and costs
based on the Gartens’ frivolous appeal.
We affirm.
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.
Cruser, J.
We concur:
Sutton, A.C.J.
Glasgow, J.
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