No. 25807-2-II.The Court of Appeals of Washington, Division Two.
Filed: October 19, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Clark County, No. 99-2-01539-1, Hon. Robert L. Harris, March 24, 2000, Judgment or order under review.
Counsel for Appellant(s), Ted J. Pyle (Appearing Pro Se), 4416 Fruit Valley Road, Vancouver, WA 98663.
Counsel for Respondent(s), James T. Moore, Asst City Attorney, 210 E 310 13th St, P.O. Box 1995, Vancouver, WA 98668-1995.
CARROLL C. BRIDGEWATER, J.
Ted J. Pyle appeals the trial court’s order finding him in contempt of a preliminary injunction and imposing several remedial sanctions. We affirm.
Facts
On June 4, 1999, the trial court granted the City’s motion for a preliminary injunction and ordered Pyle and any person in active participation with him to vacate the commercial garage, main dwelling structure, and travel trailer on Pyle’s property in Vancouver. The court entered the order after personally inspecting the property with Pyle and several city inspectors. The court found that the structures on the property contained numerous housing, structural, fire, electrical, sanitation, and safety hazards. The court found further that the City’s right to enforce its basic health and safety regulations was threatened because Pyle had failed to comply with the City’s request to vacate the premises and abate the violations, and that the interests of the City in enforcing minimum health and safety standards outweighed the interests of Pyle and his tenants.
Accordingly, the court ordered the structures named to remain vacant until each met the City’s minimum health, safety, sanitation, and fire standards. The order permitted Pyle or a licensed contractor to enter the property for the sole purpose of abating the violations. It also required the structures to be secured to prevent trespassers from entering.
On March 16, 2000, the City filed a motion for a contempt order against Pyle. The motion included affidavits of six City employees that documented repeated violations of the preliminary injunction since its entry. The trial court heard the contempt motion on March 24, 2000.
Pyle presented no evidence at the hearing and objected only to the timing of the City’s motion. After listening to his arguments and after reviewing the City’s evidence, the court found Pyle to be in violation of its injunctive order. As the court stated, I have to make a finding you are in contempt . . . by continuing activities that are placing the health, safety and welfare of others in danger. . . . You’ve allowed continued usage of the property without meeting the minimum requirements as established in the original injunction.
And that as such I am going to authorize the remedial steps to be taken to ensure that this order will be in compliance until such time as there has been appropriate building activity taken [sic] place bringing it in conformity with the code.
Report of Proceedings at 13-14. The court entered the following findings of fact supporting its contempt order:
1. Numerous individuals continue to work on cars in the garage on the property owned by Ted J. Pyle, located at 4416 Fruit Valley Road, Vancouver Washington;
2. Numerous people continue to enter the main dwelling house on the property owned by Ted J. Pyle, located at 4416 Fruit Valley Road, Vancouver, Washington;
3. Open fires and improperly installed wood stoves burn in or near the garage. Activities attendant to car repair such as welding and cutting occur inside of the garage;
4. Ted J. Pyle has not taken the appropriate steps to keep his associates and other individuals out of the garage and main dwelling unit; 5. Health, sanitation, fire, and safety hazards still exist on the property.
Clerk’s Papers at 45.
The court concluded that Pyle had intentionally violated its injunctive order that prohibited entry into the garage or main dwelling unit until the minimum housing, building, and fire code requirements were attained and further concluded that he was in contempt of court as a result. The court imposed the following sanctions:
1. Plaintiff’s motion for an order finding Ted J. Pyle in contempt of court is granted.
2. The defendant, his officers, agents, servant, employees, attorneys, and all other person in active participation with the defendant shall not enter the property located at 4416 Fruit Valley Road. . . . Ted J. Pyle or a licensed Washington contractor may still enter the property to abate the housing, building, and fire hazards;
3. The plaintiff’s [sic], its agents, designees, or contractors are authorized to enter the property described above for the purpose of properly securing all structures and hazards associated with the property;
4. The plaintiff, its agents, designees, or contractors, are allowed to post the property to give notice that the property shall not be occupied.
The posting shall generally state that entry onto the property is unlawful unless you have a valid City of Vancouver building permit, and are either Ted J. Pyle or a licensed state of Washington contractor; 5. The plaintiff, its agents, designees, or contractors are allowed to periodically inspect the property to assure that the Court’s orders in this case are followed; 6. Defendant shall pay to the Court a two-thousand dollar ($2000) forfeiture for this contempt of court; and 7. Defendant shall pay reasonable costs and attorneys fees to the plaintiff in the amount of $552.47.
Clerk’s Papers at 46-47. Pyle now appeals the contempt order and the accompanying sanctions.
Analysis
Pyle raises several challenges to the contempt order in his pro se appeal. The State responds that the appeal should be dismissed because of Pyle’s failure to comply with the requirements of RAP 10.3(a)(4), which provides that the statement of the case in an appellant’s brief shall contain a statement of the facts and procedure relevant to the issues presented without argument. Having accepted the brief without any prior objection or motion to strike from the City, this court will not dismiss the appeal on this basis.
Under Washington’s contempt statute, a person who intentionally disobeys `any lawful judgment, decree, order, or process of the court’ commits contempt of court. RCW 7.21.010(1)(b). After finding a person in contempt, the court may impose remedial sanctions `designed to ensure compliance with a prior order of the court.’ RCW 7.21.030(2)(c). Sanctions imposed for contempt of court are within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. In re Marriage of Mathews, 70 Wn. App. 116, 126, 853 P.2d 462 (1993).
Pyle argues initially that the evidence was insufficient to support the court’s findings and that they do not support the conclusion that he intentionally violated the injunctive order.
In contempt proceedings, the facts found must constitute a plain violation of the order. Johnston v. Beneficial Management Corp. of America, 96 Wn.2d 708, 712-13, 638 P.2d 1201 (1982). A trial court’s factual findings entered in support of a contempt order are reviewed to determine if they are supported by substantial evidence in the record. In re Marriage of Farr, 87 Wn. App. 177, 184, 940 P.2d 679 (1997). Substantial evidence exists if the record contains evidence of sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise. Bering v. SHARE, 106 Wn.2d 212, 220, 721 P.2d 918
(1986).
As stated, the trial court found that numerous people continued to work in the garage and to enter the main dwelling house on Pyle’s property, that open fires and improperly installed wood stoves burned in or near the garage while welding and cutting occurred inside the garage, that Pyle had not taken appropriate steps to keep people out of the garage and main dwelling unit, and that health, sanitation, fire, and safety hazards still existed on the property.
The court considered several affidavits before entering these findings. In one, a City code enforcement officer stated that from June 10, 1999, to January 26, 2000, she saw people inside or in front of the garage 25 times. A Vancouver police officer stated that he went to the property on January 14, 2000, to search for a stolen car and saw numerous people working in the garage. He saw one person lying on oil-soaked cardboard cutting a vehicle frame with a welding torch and observed an open fire inside an old wood stove located between the doors of the garage underneath an awning. Several pieces of burning wood fell out of the fire and landed on a pile of wood, beneath which was a lead acid car battery.
The officer was called back to the property on March 1, 2000, and again saw several people working in the garage. He also saw a burning wood stove inside an attached tool shed. Finally, he observed someone leaving the main dwelling unit and an intoxicated man lying on the front porch who had not been there when the officer arrived.
A second officer who went to the property on January 14, 2000, to investigate the stolen car saw people working inside the garage and a wood stove full of burning wood near the front of the garage bays. The officer’s investigation ended with Pyle’s arrest.
A fire prevention officer for the City stated that he received a call about an open fire burning on Pyle’s property on January 14, 2000. When he arrived at the property to investigate, he saw smoke and flames coming out of the wood stove shell by the garage. When he instructed the occupants to extinguish the fire, they did so by dipping water out of a rain barrel because the property did not have running water. The officer also saw an electrical generator sitting outside of the garage with three power cords attached. Before leaving, he issued an official notice informing the occupants of the ban on open burning within 50 feet of a structure.
When he performed a follow-up visit on January 19, the officer saw a person inside the garage handling a propane heater in violation of safety regulations. On March 2, he revisited the property in response to a report of heavy smoke and saw smoke coming from the rear of the garage while several people were working on cars. The fire was coming from the wood stove inside the shed. The stove created a fire hazard because it was improperly installed and had inadequate piping. As he was leaving, the officer told Pyle that the stove should not be used.
A City fire captain filed an affidavit stating that he received a complaint of heavy smoke coming from the property on February 15, 2000.
When he arrived, he saw several people working in the garage and also saw a pipe emanating from the rear of the property with smoke coming out of it.
The officer saw that the pipe did not properly angle or proceed to the top of the building. The fire chief directed the captain to file a report instead of notifying the owner because the hazard already had been called to Pyle’s attention.
Another code enforcement officer stated that she visited the property on January 14, 2000, and saw several people working in the garage. She also saw an old wood stove in front of the garage that was shooting flames from its top, which was directly under the garage overhang. She further noticed people going in and out of the main dwelling structure.
Pyle did not attempt to refute these observations, nor did he present any evidence on his own behalf. The evidence described above is more than sufficient to support the trial court’s findings as well as its conclusion that Pyle intentionally violated the court’s preliminary injunction.
Pyle also contends that some of the trial court’s sanctions are unreasonable. He first takes issue with the order that only he or a licensed contractor may enter the property to make the necessary repairs. This order was part of the court’s preliminary injunction. Remedial sanctions are designed to coerce performance where the contempt involves a person omitting or refusing to perform an act within their power to perform. Rhinevault v. Rhinevault, 91 Wn. App. 688, 694, 959 P.2d 687 (1998). The court’s sanction was clearly designed to coerce Pyle’s performance with its injunctive order while preventing further health and safety violations and the further endangerment of others. Restricting property access to Pyle or a licensed contractor does not appear unreasonable under the circumstances. Nor does it appear unreasonable for a court to impose, as remedial sanctions, key conditions of its prior order.
Pyle also argues that the court erred in making lawful entry onto his property contingent on the issuance of a building permit, in granting the City unrestricted access to the property without his consent, and in ordering that signs be posted on the property to give notice that it should not be occupied. Aside from the fact that he cites no authority to support his claim of error, these sanctions appear tailored to prevent the continued violations that led to the contempt order and do not constitute an abuse of discretion.
Finally, Pyle contends that his due process rights were violated by the preliminary injunction and contempt proceedings. Pyle has waived any claim of error with regard to the preliminary injunction proceedings by failing to appeal the injunctive order in a timely manner. See RAP 5.2(a). With regard to the contempt proceedings, RCW 7.21.030(1) requires only a `notice and hearing.’ Such notice is sufficient as long it informs the accused of the time and place of the hearing and the nature of the charges pending. Burlingame v. Consolidated Mines and Smelting Co., 106 Wn.2d 328, 335, 722 P.2d 67 (1986).
Here, Pyle received notice in a timely manner when the City mailed him a copy of the motion for contempt and supporting documents on March 16, 2000. After subtracting three days for mailing pursuant to CR 5(b)(2)(A), the City met the five-day notice requirement for serving motions under CR 6(d). Pyle appeared at the hearing and was given the opportunity to present evidence and to argue his case. There was no due process violation.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: SEINFELD, P.J., HOUGHTON, J.