### FILED JAN. 16,2014 In the Office ofthe ClerkofCourt W A State Court ofAppeals, Division III INTHE COURTOF APPEALS OF THE STATE OF WASHINGTON DNISIONTHREE GARY WNAG and SHERRY ) No. 31213-5-111 TRUMBALL, d/b/a S&GLANDLTD., 

### ) ) Appellants, ) ) 

### v. ) UNPUBLISHED OPINION 

### ) CITY OF CLE ELUM, ) ) Respondent. )**KULI~** J.

- Gary Wivag and the city ofCle Elum(City) agreedto a stipulated judgmentand injunctionto address the nuisance violations onMr. Wivag'sproperty. WhenMr. Wivag failed to satisfy his obligations underthe agreement, the agreement authorized the City totake corrective actionto abatethe nuisance. Following abatement, thetrial courtentered a supplementaljudgment and orderedMr. Wivagtopay associated costs. Mr. Wivag appeals. He contends thatthe trial court erred in enteringthe supplementaljudgmentbecausethe City engaged in self-help by abatingtheproperty without a court order. He also contends thatthe City failed to comply with its own preconditions to enforcement ofthe nuisance abatement. We disagree with Mr. Wivag'sNo. 31213-5-III Wivag 

### v. City of Cle Elum arguments and affirm the trial court's ruling in favor ofthe City. FACTS In 2008, a hearing examiner found the existence ofnumerous public nuisances on Mr. Wivag's property and ordered abatement ofthese nuisances. Mr. Wivag failed to comply. The City sought enforcement ofthe hearing examiner's order. In January 2012, 

### Mr. Wivag andthe City entered into a "Stipulated Judgment and Injunction" to address the nuisance violations. Clerk's Papers (CP) at 2-7. Mr. Wivag and the City stipulated (1) that Mr. Wivag failed to remedy the violations found by the hearing examiner and allowed new public nuisances to occur on the property, (2) that

### Mr. Wivag was required to screen the property frontage, and (3) that Mr. Wivag was required to submit a complete application for a conditional usepermit (CUP) for his land use and business activities. The parties also stipulated to ajudgmentin favor ofthe City for $10,000. Based on this stipulation, the court ordered (1) that Mr. Wivag paythe City $10,000 within 3 calendar days ofthe stipulatedjudgment and injunction, (2) that Mr. Wivag remedy all code violations or other deficiencies at theproperty as noted in the 2008 hearing examiner order within 30 days ofthe effective date ofthe injunction, (3) that

### Mr. Wivag install wood fencing along the entire frontage ofthe property not later
2No. 31213-5-111 Wivag v. City of Cle Elum
than March 31,2012, and (4) that Mr. Wivag file a complete application for a CUP not laterthan February 29,2012. The trial court also ordered, 

### 3. In the eventthat Defendants fail to timely complete the corrective action required by the terms of[this order and injunction], the City is authorized but not obligated to take any corrective action reasonably necessary to abate the public nuisances atthe Property consistent withthe Cle ElumMunicipal Code and state law. In that event, the City is authorized to present a supplementaljudgment assessing the associated costs, including City employee costs, contractor fees, and attorney fees against Defendants and in favor ofthe City. 4. The City shall retain the right to bringmotions for contempt and to seek any otherremedy available at law or in equity. The Court shall retainjurisdiction over this case to hear any such matters. CP at 6. Mr. Wivagpaidthe $10,000judgmentto the City within the required time period. On February 23, Mr. Wivag filed a CUP application. He believedthat hehad included all required information. On March 20, the City informed Mr. Wivag that the application
was incomplete. The City identified three areas ofthe application that required additional information. The City did not give a time period for submitting the additional materials. Mr. Wivag claims that he sent in the materials shortly after the notification.

3No. 31213-5-III Wivag v. City of Cle Elum
As for the fence, 

### Mr. Wivag believedhe had until May 15 to complete the fence. He based this beliefon an earlier draft version ofthe stipulated agreement. The oldwire fence was removed in March. He did not install the fencing by March 31. The City sent Mr. Wivag a letter notifying him that it would begin abatement activities on May 1due to Mr. Wivag's failure to comply with the stipulatedjudgment and injunction. The City informed Mr. Wivag that the stipulatedjudgment and injunction authorized the abatement activity and the assessment ofcosts. Beginning on May 1, the City abated Mr. Wivag's property. Then, following the terms ofthe stipulatedjudgment, the City filed a motion for supplementaljudgment. The City asked the trial courtto assess Mr. Wivag with the costs, contractor fees, and attorney fees incurred by the corrective action. The trial court granted the City's motion and entered a supplementaljudgment in the amount of$13,519.49
. 

### Mr. Wivag appeals the supplementaljudgment. He contends that he should not be required to pay the costs ofabatement because the City acted without legal authority when it abated the nuisance. Hemaintains that the City improperly enforced the stipulatedjudgmentwithout first obtaining a writ ofexecution as required by RCW 6.17.070. In the alternative, he contends that the City failed to comply with its own preconditions to enforcement ofthe nuisance abatement.


### 4

### No. 31213-5-III Wivag v. City ofCleElum


### ANALYSIS A trial court's legal conclusions and statutory interpretations are reviewed de novo. Vance 

### v. XXXL Dev., LLC, 

### 150 Wn. App. 39,41,206 P.3d 679 (2009). However, a trial court's decision to enforce a binding agreement under CR2A is reviewed for an abuse ofdiscretion. In re Patterson, 

### 93 Wn. App. 579, 586, 969 P.2d 1106 (1999). "[A] trial court's determination that the parties fully appreciated the terms ofthe settlement will not be disturbed where it is supported by the evidence." Snyder 

### v. Tompkins, 

### 20 Wn. App. 167, 173-74,579P.2d 994 (1978). Courts are inclined to view stipulated settlements as final. Id. 

### at 173. Ajudgment by consent will not be reviewed on appeal absent fraud, mistake, or want of jurisdiction. Wash. Asphalt Co. 

### v. HaroldKaeser Co., 

### 51 Wn.2d 89, 91, 316 P.2d 126 (1957). Execution of theJudgment. 

### Mr. Wivag admits thatthe stipulatedjudgmentand injunction is valid and that the supplementaljudgment is authorized underthe stipulated agreement. Also, he admits that he did not meet the timelines in the stipulatedjudgment and injunction. On appeal, Mr. Wivag maintains that he should not be required to pay the costs for abatement ofthe nuisance because the City did not follow properprocedure for enforcing the stipulatedjudgmentunder RCW 6.17.070.

5No. 31213-5-111 

### Wivag v. City ofCleElum
RCW 6.17.070 governs the execution ofajudgment in particular cases. Itreads: "When anyjudgmentofa court ofthis state requires thepayment ofmoney orthe delivery ofreal orpersonal property, it may be enforced by execution. When ajudgment ofacourt ofrecord requires theperformance ofany other act, a certified copy ofthe judgmentmay be served on the party against whom it is given ortheperson orofficer who is required by thejudgment orby law to obey the same, and a writ may be issued commanding the person or officerto obey or enforce thejudgment. Refusal to do so may be punished by the court as for contempt." RCW 6.17.070. Contrary to Mr. Wivag's contention, the City was not required to enforce the stipulatedjudgment and injunction under RCW 6.17.070. The terms ofthe stipulated judgment and injunction did not require execution under this statute. Mr. Wivag agreed to otherprocedures when he reached a stipulated agreement with the City. Thetrial court authorized the agreed uponprocedures. CR 2A governs stipulated agreements. CR2A applies when (1) an agreement was made by the parties orthe attorneys in respect to the proceedings in a cause, and (2) the purport ofthe agreement is disputed. 

### In re Marriage of Ferree, 71 Wn. App. 35, 39, 856 P.2d 706 (1993). A stipulatedjudgmentthat is properly entered is binding on the parties and will not be reviewed on appeal absent a showing offraud, mistake, misunderstanding,


### 6No. 31213-5-111 Wivag 

### v. City ofCleElum

or lack of jurisdiction. Bairdv. Baird, 6 Wn. App. 587, 589,494 P.2d 1387 (1972). The stipulatedjudgment "excuses all prior errors and operates to end all controversy between the parties, within the scope ofthejudgment." Wash. Asphalt, 51 Wn.2d at 91. The purpose ofCR2A agreements is to "insure that negotiations undertaken to avert or simplify trial do not propagate additional disputes that then must be tried along with the original one." Ferree, 71 Wn. App. at 41. The amicable settlement ofdisputes is favored by the courts. Snyder, 20 Wn. App. at 173. "A stipulation agreement signed and subscribed by the attorneys representing the parties is a contract and its construction is governed by the legal principles applicable to contracts." Allstotv. Edwards, 114 Wn. App. 625, 636, 60 P.3d 601 (2002). "A traditional bilateral contract is formed by the exchange ofreciprocal promises. The promise ofeach party is consideration supporting the promise ofthe other." Govier v. N. SoundBank, 91 Wn. App. 493, 499, 957 P.2d 811 (1998). We read the terms ofa contracttogether so that no term is rendered ineffective ormeaningless. Cambridge Townhomes, LLCv. Pac. StarRoofing, Inc., 166 Wn.2d 475,487,209 P.3d 863 (2009). In Mr. Wivag's agreement with the City, the stipulatedjudgment and injunction authorized the City to take corrective action reasonably necessary to abate the public nuisance in the event that Mr. Wivag failed to timely complete his obligations. Mr.
7No.31213-5-II1 Wivag v. City of Cle Elum Wivag admits that he did not fully comply. I Under the tenns ofthe agreement, the City entered his property, abatedthe nuisance, and petitioned the court for abatement costs. The agreement did not require additional court action before the City acted to abate the nuisance. Mr. Wivag agreed to the stipulatedjudgmentand is bound by its tenns, including the authorization ofaction by the City and the entry ofthe supplemental judgment. Even though Mr. Wivag did not meet his obligations, the City was not required to compel him to comply by requesting execution ofthejudgment. Mr. Wivag never sought to avoid enforcement ofthe agreement. He attempted toperfonn, but instead failed. Provisions were in place for his failure to comply. There was no need to request execution ofajudgmentthat was not being challenged and where reliefwas agreed upon and provided in thejudgment. Requiring following RCW 6.17.070 would violatethe purpose behind stipulated judgments and violate contractprinciples. Stipulatedjudgments avert the need for trial. Under contractprinciples, ifa writ was neededto enforce this stipulatedjudgment and injunction, the provision that allowed the City to take corrective action would be meaningless. Furthennore, Mr. Wivag would be the onlyparty receiving a benefit from

I Mr. Wivag suggests that his lack ofperfonnance should be excused because he 

### 8No. 31213-5-

### III Wivag 

### v. City of Cle Elum
the agreement. Mr. Wivag gained time to cure the nuisances found by the hearing examiner. In exchange, ifMr. Wivag failed to fulfill his obligations, he authorizedthe City to take corrective action. This provision would be ofno benefit ifthe City was still required to obtain a courtorder to act on the terms thatwere bargained for by the parties. Requiring additional litigation to enforce a mutual agreement does not favor the amicable settlement ofdisputes. The City did nottake matters into its own hands, as asserted byMr. Wivag. The City acted within the scope ofthe law and within the scope ofthe stipulatedjudgmentand injunction. RCW 7.48.220 allows any public body to abate a nuisance. Mr. Wivag agreed that the City could take corrective action reasonably necessary to abate the nuisance ifhe failed to timely complete his obligations. The trial court did not errby entering the supplementaljudgment ordering Mr. Wivag to pay for the abatement. The City was·not required to enforce the stipulatedjudgment under RCW 6.17.070. City's Preconditions. Mr. Wivag also contends that the City failed to comply with RCW 7.48.250, RCW 7.48.260, and Cle ElumMunicipal Code (CEMC) 8.12.070 when it abated the nuisance. Generally speaking, both the statute and the CEMC require the substantially complied. He provides no legal authority for this argument. 9No. 31213-5-II1 Wivag v. City of Cle Elum
issuance ofawritbefore a nuisance can be abated. RCW 7.48.250; CEMC 8.12.070. RCW 7.48.260 requires that the trial court inquire into the costs ofabatement before issuing a warrant ordering abatement at the defendant's expense. A writ was not needed for the City to act under the terms ofthe stipulated judgment and injunction. While RCW 7.48.250 and CEMC 8.12.070 provide a method for the City to abate a nuisance, this is not the procedure agreed upon by the City and Mr. Wivag in the stipulatedjudgment. Theparties entered into an agreement to allow Mr. Wivag to correct the violations before taking drastic abatement measures. The stipulated judgment "excuses all prior errors and operates to end all controversy between the parties, within the scope ofthejudgment." Wash. Asphalt, 51 Wn.2d at 91. Additionally, there was no need for additional court authorization under the procedures set forth in RCW 7.48.250 and CEMC 8.12.070 because the trial court authorized abatement in the stipulatedjudgment and injunction. And under RCW 7.48.260, there was no need to estimate costs before abatement. Theparties did not include such a provision. The court reviewed costs before issuing the supplemental judgment, as provided in the stipulatedjudgment and injunction. The City was not required to follow additional statutory procedures outside the scope ofthe agreement to execute abatement.
10No. 31213-5-111 

### Wivag 

### v. City ofCleElum
issuance ofa writ before a nuisance can be abated. RCW 7.48.250; CEMC 8.12.070. RCW 7.48.260 requires that the trial court inquire into the costs ofabatement before issuing a warrant ordering abatement at the defendant's expense. A writ was not needed for the City to act under the terms ofthe stipulated judgment and injunction. While RCW 7.48.250 and CEMC 8.12.070 provide a method for the City to abate a nuisance, this is not the procedure agreed upon by the City and 

### Mr. Wivag in the stipulatedjudgment. The parties entered into an agreement to allow Mr. Wivag to correctthe violations before taking drastic abatement measures. The stipulated judgment "excuses all prior errors and operates to end all controversy betweenthe parties, within the scope ofthejudgment." 

### Wash. Asphalt, 51 Wn.2d at 91. Additionally, there was no need for additional court authorization under the procedures set forth in RCW 7.48.250 and CEMC 8.12.070 because the trial court authorized abatement in the stipulatedjudgment and injunction. And under RCW 7.48.260, there was no need to estimate costs before abatement. The parties did not include such a provision. The court reviewed costs before issuing the supplemental judgment, as provided in the stipulatedjudgment and injunction. The City was notrequired to follow additional statutory procedures outside the scope ofthe agreement to execute abatement.
10No. 31213-5-111 

### Wivag v. City ofCleElum AttorneyFees. The City requests attorney fees on appeaL Where a contract allows an award ofattorney fees at trial, an appellate court has authority to award attorney fees on appeal. Bloor v. Fritz, 143 

### Wn. App. 718, 753, 180 

### P.3d 805 (2008). 

### A stipulatedjudgmentis a contract between the parties and is subjectto contractprinciples. Allstot, 114 

### Wn. App. at 636. 

### The stipulatedjudgment and injunction stated that in the eventthat the City takes corrective action reasonably necessary to abate the nuisance on Mr. Wivag'sproperty, "the City is authorized to present a supplementaljudgment assessing the associated costs, including
... attorney fees against Defendants and in favor ofthe City." CP at 6. 

### The City is awarded attorney fees on appeal. The stipulatedjudgment allows for the City to request attorney fees in the eventthat it is required to take corrective action to abate the nuisance on Mr. Wivag's property. The City took corrective action, and this appeal is directly related to that action. While 

### Mr. Wivag contends that his challenge does notpertain to the stipulatedjudgment so the fee provision is inapplicable, his argument is notpersuasive. Mr. Wivag's arguments were rooted in the stipulated judgment and the City's authority to act under the parties' agreement. The City incurred attorney fees defending its abatement actions. Itis entitled to attorney fees on appeal.



### 11

### NO. 31213-5-111 Wivag v. 

### City ofCleElum
We affirm the trial court and grantthe City's request for attorney fees. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public recordpursuant to RCW 2.06.040.



## , Kulik, J. WE CONCUR:

orsmo, C.J.



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