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FILED June

### 30,2015 In theOfficeoftheClerkofCourt WA StateCourtofAppeals, Division III

IN THE COURTOF APPEALS OFTHE STATE OF WASHINGTON DIVISION THREE DONALD 

### K. BINGHAM and JANET

### L. ) No. 32567-9-111 BINGHAM, husband and wife, ) 

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# j I Appellants, ) ) v. ) ) UNPUBLISHED OPINION GARYA. HEADRICKand MARYJANE ) HEADRICK, husband and wife, ) ) Respondents. ) BROWN, A.C.J.
- Donald 

### K. and Janet

### L. Bingham appeal thetrial court's 2013 contempt and sanction rulings favoring their neighbors GaryA. and MaryJane Headrick stemming from a 1994 easementdispute settlement. In an unappealed 2000dispute enforcementorder, thetrial courtspecified an enlarged turnaround on the Binghams' property requiring them to movetheir barn. In 2011, the Binghams moved their barn back ontothe easement leading tothis dispute. The Binghams contend thetrial court erred in deciding theyviolated the 2000 court order. Wedisagree, and affirm. FACTS In 1994, the Binghams sued to quiettitle, partly regarding a driveway placement disputewith the Headricks. Laterthatyearthe parties settled in a court-approved**~** 

# INo. 32567-9-111 Bingham v. Headrick stipulated agreement creating an 8' x 10' turnaround easement on the Binghams' property in favor ofthe Headricks. The location was to be between a proposed retaining wall and a barn. In 1998 after a boulder placement dispute, the parties agreed the Headricks would remove all but one boulder "in exchange that [the Binghams] relocate [their] barn in favor of[the Headricks] turn-around area." Clerk's Papers (CP) at 349. The barn was apparentlyto be placed near a mapletree. Overthe years, the parties filed multiple enforcement requests. Disputed now is
a January2000 letter order reduced to an unappealedjudgment on March 23, 2000. The order required the Headricks to move their barn by June 1, 2000 based on the 1994 and 1998 agreements. The court ordered, "The Headricks' turnaround area shall be expanded bythe area created by moving the red barn." CP 42-43. The court denied the Headricks' request for contempt sanctions. In 2000, the Headricks hired LarryWeinert of Munson Engineering, Inc. d/b/a Weinert Surveying, to survey the expanded area. The survey recorded in 2001 showed
an expanded easement ofapproximately 8' x 22' for a turnaround area. This survey mistakenly identified the easement as a parking and turnaround easement, which the Binghams' counsel objected to in a letterto the Headricks' attorney. The Binghams requested the survey be re-recorded to remove the reference to the parking easement, but otherwise did notobject to the survey's turnaround dimensions. The Headricks complied with the letter and recorded the survey again, solely deleting the reference to

2No. 32567-9-111 Bingham v. Headrick parking. The location and dimensions ofthe expanded turnaround area ordered by the trial court remained the same in the re-recorded survey as in the original survey. In late 2011, for unexplained reasons, the Binghams moved their barn roughly
seven feet into the expanded easement and installed fence stakes along the side facing the easement reducing the turnaround easement nearlyto the pre-2000 8' x 10' area. In 2013 after negotiations failed and the original judge (John Bridges) had retired, the Headricks requested the court (Judge Lesley A. Allan) enforce the 2000judgment expanding the turnaround easement. The Binghams countered that the turnaround easementwas never morethan an 8 x 10 area. Thetrial court applying the 2000 order disagreed, finding "[Headricks'] turnaround area was expanded by the area created by moving the barn and itwas ordered thatthe total turnaround areas shall run with the land." CP at530. The court ordered the barn to be moved to the location shown on the Weinert survey. Atthe hearing before entry ofthe court's order, the Binghams contested the court's interpretation ofthe 2000judgment, the trial court stated, U[M]y interpretation of Judge Bridges' ruling thatthe turnaround area then was expanded, and 'expanded' is a word thatJudge Bridges used to encompass thatarea. . . . Which to me looks like that whole area on this side ofthe barn, which is biggerthan the 8-by-10

.. " So that is my intent and interpretation ofa decision that Judge Bridges made many, many years ago thatwas not appealed." Report of Proceedings (RP) at63-64. Later in the hearing, the court stated, "We have a survey conducted atthe time showing where itwas moved and



### 3No. 32567-9-111 Bingham v. Headrick
I'm satisfied with that information, that that showed exactly what Judge Bridges intended." RP at70. In 2013, the court ordered enforcement ofthe 2000 order. The courtfound, "Plaintiffs knowingly and intentionallyviolated this Court's March 23, 2000, rulings relative to theTurnaround Easement by moving their barn into the Court-:-ordered Turnaround Area very nearthe parties' common boundary line, thus knowingly and intentionally preventing the Defendants from their rightful use and enjoyment ofthe Turnaround Easement. The Court, therefore, finds the Plaintiffs to be in contempt." CP at 608. The court granted the Headricks' requestfor attorneyfees and imposed contempt sanctions, imposingjudgmentagainstthe Binghamsfor $25,136 in attorney fees and $1,465 as sanctions for loss of use ofthe full turnaround easement. The Binghams unsuccessfully requested both reconsideration and relief fromjudgment 

# ! under CR 60. The Binghams relocated their barn as ordered. The Binghams appealed. ANALYSIS 

# I 1 A. Contempt and Sanctions The issue is whether the trial court erred by abusing its discretion in finding the 

# I Binghams in contempt and ordering sanctions. The Binghams contend SUbstantial ;j 1 evidence does not showthey intentionally and willfu"y violated anyagreement. Initia"y, the Binghams challenge the sufficiency ofthe trial court's 2000 findings offact in support of its contempt order, requiring the Binghams to movethe barn in conformance with the agreement reached bythe parties and to expand theturnaround


# I 4No. 32567-9-111 Bingham v. Headrick

area. The Binghams argue the court should have entered more specificfindings regarding the exact expansion size. The Binghams challenge the 2013 findings in supportofthe court's contempt order, arguing they fail to adequately explain howthe Binghams were in contempt. A trial court must makefindings offact specifying the basis for its contempt judgment. In 

### re Marriage ofJames, 79 Wn. App. 436, 440, 903 P.2d 470 (1995). First, the 2000judgment is not the direct subject ofthis appeal. This appeal relates to the 2013 contemptfinding and 2014 imposition ofsanctions. Thus, any challenge to the 2000 findings offact is untimely. Next, the 2013 order clearly states the courtfinds, "The area, dimensions, and location ofthe Turnaround Easement are as depicted and described on Exhibit 5 [the Weinert survey]." CP at 607. The courtfurther found "[the Binghams] knowingly and intentionallyviolated this Court's March 23, 2000, rulings relative to the Turnaround Easement." CP at 608. These findings specify the basis of the court's contemptfinding and are sufficient for our review. We review a contempt order under RCW 7.21.010 for abuse ofdiscretion. Moreman v. Butcher, 126Wn.2d 36, 40,891 P.2d 725 (1995). A court abuses its discretion when its decision is based on untenable grounds or is made for untenable
reasons. Id. Moreover, we review a trial court's findings offact to determine whether substantial evidence supports them and whetherthose findings, in turn, support the conclusions of law. RidgeviewProps. v. Starbuck, 96 Wn.2d 716, 719, 638 P.2d 1231 (1982). "Substantial evidence" is the quantum ofevidence "sufficient to persuade a


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rational fair-minded person the premise is true." Sunnyside Valley Irrigation Dist. v. Dickie, 149Wn.2d 873, 879, 73 P.3d 369 (2003). We will not "disturb findings offact supported by substantial evidence even ifthere is conflicting evidence." Merriman v. Coke/ey, 168Wn.2d 627,631,230 P.3d 162 (2010). We deferto the trialjudge on issues ofwitness credibility and persuasiveness ofthe evidence. Boeing Co. v. Heidy, 147Wn.2d 78, 87, 51 P.3d 793 (2002). Under RCW 7.21.010(1)(b), a person is in contempt based on U[d]isobedience of any lawful judgment, decree, order, orprocess ofthe court." All acts must be "intentional." RCW 7.21.010(1). Our record shows the parties have a long history ofdisputes and settlements. In 1994, they agreed to an 8' x 10' turnaround easement on the Binghams' property in favor ofthe Headricks. They then modified that agreement in 1998. The Binghams then agreed to "relocate [their] barn in favor of[the Headricks] turn-around area." CP at 349. The barn was to be placed neara maple tree. Then, in 1999, the Headricks asked to enforce the 1994 and 1998 agreement regarding the barn placementthat interfered with the Headricks' use oftheirturnaround. The trial courtfound the Binghams' barn had "not been repositioned to the 'limit' ofthe maple tree as was agreed by and between the parties." CP at 190. The court ordered the Binghams to move the barn by "June 1,2000, in conformance with the agreement reached by the parties." CP at 34. The court ordered, "The Headricks' turnaround area shall be expanded by the area



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created by moving the red barn." CP at42-43. This evidence sufficiently shows the turnaround easementwas expanded. The Binghams argue, even ifexpanded, the expansion was not as large as depicted in theWeinertsurvey. The Headricks counterthis argument cannot be raised for the first time on appeal. Butthe Binghams raised this argument in their CR 60 

# I motion for reliefofjudgment. Generally, arguments raised in a CR 60 motion are preserved for appeal. Gutz v. Johnson, 128 Wn. App. 901,911, 117 P.3d 390 (2005). 

# I Although we address the Binghams' argument, it is unpersuasive. The Headricks hired Mr. Weinert to surveythe area based on the parties' agreement. The survey showed an area ofapproximately 8' x 22' for a turnaround area. The Binghams reviewed this survey and solely objected to the term "parking" in labeling the area. Exhibit 5. The survey was corrected and re-recorded withoutfurther objection and the barn was moved. This evidence sufficiently showsthe Binghamswere aware of the size ofthe expansion. We deferto the trial court's evidence weight and witness credibility determinationsthat the Binghamswere aware ofthe expansion and intentionallyviolated the 2000 order. Therefore, we conclude the trial court did not abuse its discretion in finding the Binghams in contempt and ordering sanctions. B. Attorney Fees The Headricks request attorneyfees on appeal under RCW 7.21.030(3). RCW 7.21.030(3) allows a courtto order a person found in contempt ofcourtto pay a party's costs incurred in connection with the contempt proceeding, including reasonable



### 7No. 32567-9-111 Bingham v. Headrick attorneyfees. A partywho successfully defends the appeal ofa contempt order may recover attorneyfees under RCW 7.21.030(3). In re Marriage ofCurtis, 106 Wn. App. 191,202,23 P.3d 13 (2001). The Headricks are the prevailing parties and under RCW 7.21.030(3) are entitled to attorneyfees on appeal. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

# ~~Aa Brown, AC.J.
­ WE CONCUR:
Lawrence-Berrey, J.



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