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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

PAM & DEAN ROCKWOOD, husband and                                 No.  41088-5-II
wife,

                             Respondents,                  UNPUBLISHED OPINION

       v.

JOHN J. HADALLER, an individual,

                             Appellant.

       Johanson, J.  --  The trial court held John J. Hadaller in contempt of court for failing to 

comply with a court order to take all necessary steps to sell a piece of property by a certain date.  

The trial court imposed a monetary sanction against Hadaller to coerce his compliance.  Hadaller 

appeals the finding of contempt and the sanction.  We affirm         because Hadaller fails to 

demonstrate that the trial court abused its discretion.

                                            FACTS

       In 2004, developer John Hadaller and Pam and Dean Rockwood entered into a five-year 

lease-option contract for a Mossyrock property.  Per the agreement, following their five-year 

lease on the property, the Rockwoods could elect the option to purchase it.

       At the conclusion of the five-year lease in 2009, the Rockwoods exercised their option to 

purchase the property.  Hadaller, though, did not perform under the lease-option contract.  So, 

the Rockwoods sought specific performance on the original contract.  In August 2009, the trial 

court granted the Rockwoods' summary judgment motion, holding that Hadaller breached the 

lease-option contract, and it ordered specific performance:  Hadaller must sell the property to the 

Rockwoods as per the lease-option contract by December 31, 2009. 

No.  41088-5-II

       By December 2009, Hadaller had yet to prepare the property for sale.  As a result, the trial 

court appointed a third-party surveyor to prepare the property for sale.  On May 17, 2010, the 

third-party surveyor completed its preparation of the property for sale.  At a hearing on June 18, 

the trial court ordered Hadaller to "take all necessary steps to complete the ordered sale" by June 

30.  Clerk's Papers (CP) at 172.  The trial court noted Hadaller's "maneuvering, obfuscation and 

argument that's gone on over this lifetime of the lawsuit."    Verbatim  Report of  Proceedings 

(VRP) (June 18, 2010) at 10.  It also observed Hadaller's "slight of hand" attempt to reserve for 

himself a covenant on the property that would restrain the Rockwoods' future ability to grant 

easements on the property.  The trial court granted the Rockwoods' motion and awarded to the 

Rockwoods further attorney fees and costs.

       Hadaller's continued inaction prevented the sale by the court-ordered June 30 deadline, 

and on August 6, the trial court heard the Rockwoods' motion to find Hadaller in contempt of the 

June 18 order.  At the contempt motion hearing, the court indicated that a third-party purchaser 

of another Hadaller asset had agreed to provide early payment on its contract with Hadaller in 

order to help Hadaller facilitate the Rockwood closing.  But, to the trial court's dismay, Hadaller 

responded that he could not use his seller's interest in the third-party contract to facilitate the 

Rockwood closing because he had assigned his seller's interest to another person.1

       The trial court concluded that Hadaller was in contempt of the court's order and ordered 

him  "to immediately take all necessary steps to expeditiously complete the sale and close on 

1 Hadaller assigned his seller's interest to Deborah Reynolds, who Hadaller described as his 
"assistant" that he owed for her work.  VRP (Aug. 6, 2010) at 13.  The Rockwoods and trial 
court both refer to Reynolds as Hadaller's long-term, live-in "girlfriend." VRP (Aug. 6, 2010) at 
17.

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No.  41088-5-II

August 13, 2010, including without limitation providing necessary funds required for the closing 

and signing the closing papers." CP at 176.  The contempt order awarded attorney fees to the 

Rockwoods as the continuing prevailing party, as well as a $10,000 contempt sanction against 

Hadaller.  The order contained a clause that would purge the $10,000 sanction if Hadaller were to 

fully comply with the order and "take[] all necessary steps to facilitate the ordered sale to the 

Rockwoods by no later than August 13, 2010."       CP at 176.  The trial court also appointed 

attorney T. Charles Althauser to act as Hadaller's agent to sign the closing documents on 

Hadaller's behalf, should Hadaller refuse to sign the closing paperwork himself.

       The transaction closed by August 13 without Hadaller's cooperation.  Two days prior to 

closing, as a result of Hadaller's delinquency in paying his bills, a local quarry filed a lien against 

Hadaller's property, forcing the Rockwoods to find additional funds to pay the costs to lift the 

lien on the property.  Then, just before the August 13 deadline, Hadaller filed a lis pendens

encumbrance on the property.  Finally, as the trial court had expected, Hadaller refused to sign the 

closing paperwork; so instead, the Rockwoods worked with Hadaller's court-appointed agent, the 

closing agent, and the lending agent to close the sale on time.  Consequently, the Rockwoods 

brought another motion for an order enforcing contempt and awarding supplemental attorney fees 

and costs because Hadaller had not taken "all necessary steps to facilitate the ordered sale." CP 

at 72-73.

       On September 3, the trial court held Hadaller in continuing contempt of court because of 

his actions -- and inactions -- prior to the August 13 closing.       The court cited Hadaller's non-

compliance with the order to take all necessary steps to facilitate the sale.  The court ordered 

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No.  41088-5-II

payment of the $10,000 sanction within 90 days.

       Hadaller appeals the trial court's contempt order and $10,000 contempt sanction.

                                          ANALYSIS

                                          I.  Contempt

       Hadaller argues that the trial court erred in finding him in contempt of the June 18 order.  

The trial court, however, did not abuse its discretion in finding Hadaller in contempt.  A trial 

court may hold a party in contempt for failing or refusing to perform "an act that is yet within the 

person's power to perform." RCW 7.21.030(2).  Whether a party's actions warrant contempt is a 

matter within the sound discretion of the trial court; and, unless the trial court abuses that 

discretion, it should not be disturbed on appeal.  Moreman v. Butcher, 126 Wn.2d 36, 40, 891 

P.2d 725 (1995).  A trial court abuses its discretion only if there is a clear showing that its 

exercise of discretion was manifestly unreasonable, based on untenable grounds, or based on 

untenable reasons.  Moreman, 126 Wn.2d at 40.

       In civil contempt proceedings, the law presumes that one is capable of performing those 

actions the court requires, and the inability to comply is an affirmative defense.  In re Pers. 

Restraint of King, 110 Wn.2d 793, 804, 756 P.2d 1303 (1988).  The contemnor bears the burden 

of production and the burden of persuasion to demonstrate its claimed inability to comply with the 

court's order.  Moreman, 126 Wn.2d at 40.  Moreover, a contemnor must "'offer evidence as to 

his inability to comply and the evidence must be of a kind the court finds credible.'"  Moreman, 

126 Wn.2d at 40-41 (quoting King, 110 Wn.2d at 804).  Hadaller fails to demonstrate any abuse 

of discretion.

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No.  41088-5-II

       The trial court determined that, between the June 18 order and June 30 deadline to sell, 

Hadaller had money available to complete the sale to the Rockwoods.  Rather than executing the 

sale by June 30, as the court ordered, Hadaller instead assigned his seller's interest in another

contract to Reynolds, leaving himself without the funds to cover the closing costs.  Hadaller does 

not deny that he transferred this asset -- an asset with value exceeding that needed to complete 

closing -- to a third party.

       Instead, Hadaller detailed his inability to close by June 30.  He argued that he had no 

choice but to transfer his seller's interest in the other property to Reynolds because he owed 

Reynolds on a previous debt.  Hadaller also claims that he had expected to qualify for a loan to 

cover the needed closing costs; but, he did not learn until July 1, 2010 that his credit score would 

prevent his receiving the anticipated loan.

       Hadaller failed to convince the trial court of his inability to comply with the June 18 order.  

The court characterized Hadaller's justifications for failing to comply: "I don't think I have ever 

heard a more lame excuse [transferring his asset to Reynolds] in recent memory for not complying 

with the Court's orders than the one I have heard from you this morning."   VRP (Aug. 6, 2010) 

at 25.  The court elaborated:  "There's money available here.  This idea that you have supposedly 

assigned it to your  --  who you refer to as your assistant, obliquely on numerous occasions during 

the arguments on these cases for no consideration, other than antecedent debt, if there is 

antecedent debt, is preposterous." VRP (Aug. 6, 2010) at 26.

       Now, Hadaller bears the burden of proving -- with evidence the trial court finds 

credible -- that he could not comply with the court order.  See Moreman, 126 Wn.2d at 40-41.  

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No.  41088-5-II

But, the trial court did not find Hadaller's excuses credible.  Therefore, Hadaller fails to 

demonstrate that the trial court abused its discretion in finding him in contempt.  See Moreman, 

126 Wn.2d at 40.

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No.  41088-5-II

                                    II.  Contempt Sanctions

       Hadaller argues that the trial court erred in sanctioning him $10,000 for his failure to 

comply with the June 18 court order.  Specifically, he claims he purged his contempt and that 

assessment of the $10,000 sanction would then amount to punitive sanctions -- which would have 

required additional due process considerations.  Again, the trial court did not abuse its discretion 

in finding Hadaller failed to purge his contempt and imposing civil sanctions.  A trial court may 

impose remedial sanctions to ensure compliance with a court order or, "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); .030  And, if the sole purpose 

of the sanction is to coerce compliance with the trial court's lawful order, then it is civil.  King, 

110 Wn.2d at 799.

       When punishment in contempt cases is not inevitable but can be controlled by the party 

itself, such contempt actions are not criminal but remedial civil sanctions.  In re Marriage of 

Bralley, 70 Wn. App. 646, 652, 855 P.2d 1174 (1993).  Moreover, in a civil contempt proceeding 

the contemnor is not entitled to a jury trial to determine whether she is in contempt.  See Keller v. 

Keller, 52 Wn.2d 84, 87, 323 P.2d 231 (1958).

       A trial court abuses its discretion when its orders -- to pay sanctions, for example -- are 

manifestly unreasonable or based on untenable grounds.  Holbrook v. Weyerhaeuser Co., 118 

Wn.2d 306, 315, 822 P.2d 271 (1992).  Here, the trial court did not abuse its discretion by 

imposing remedial civil sanctions against Hadaller.  Hadaller argues that the trial court's contempt 

sanctions amount to improper punitive sanctions and that punitive sanctions invoke further due 

                                               7 

No.  41088-5-II

process considerations.

       Yet, the trial court's sanctions bear characteristics common to remedial sanctions, rather 

than the punitive sanctions, which would require further due process procedures.  First, the 

purpose of the sanctions was to coerce Hadaller's compliance with the trial court order to provide 

the funds required to close the transaction and sign the closing documents by the August 13 

deadline.  Second, at the time of the June 18 court order, Hadaller had the ability to perform on 

the order.  Third, the $10,000 sanction did not exceed the $2,000/day contempt sanction allowed 

under law.  See RCW 7.21.030(2)(b).2 And fourth, the trial court included in the contempt order 

a purge clause under which Hadaller could have avoided the sanctions altogether had he simply 

complied with the court order.3 Because the trial court did not impose an inevitable punishment 

but rather one within Hadaller's power to control, the trial court imposed remedial sanctions.  See

Bralley, 70 Wn. App. at 652.

       The trial court's primary goal was to coerce Hadaller's compliance with the court order 

and complete the sale to the Rockwoods by August 13.  And, because remedial sanctions are 

civil, rather than criminal, Hadaller's remedial sanctions do not invoke additional due process 

procedures.  See State v. Boren, 42 Wn.2d 155, 157-59, 253 P.2d 939 (1953).  The trial court 

2 The trial court imposed the $10,000 contempt sanction on August 6 -- after Hadaller failed to 
comply with the June 18 order requiring sale by June 30.  As Hadaller's contempt period
exceeded five days, at the time the trial court issued sanctions, the trial court's statutory powers 
allowed a $10,000 sanction.  See RCW 7.21.030(2)(b).

3 The purge clause stated:  
       Due to Hadaller's contempt, the Court sanctions Hadaller in an amount of 
       $10,000, payable to the Court.  Such contempt sanction may be purged entirely by 
       Hadaller if he fully complies with this Order and takes all necessary steps to 
       facilitate the ordered sale to the Rockwoods by no later than August 13, 2010.
CP at 176.
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No.  41088-5-II

validly levied its $10,000 sanction against Hadaller.

                                      III.  Failure to Purge

       Hadaller finally asserts that, because the Rockwoods completed the purchase of the 

property by the August 13 deadline -- the trial court should have purged his $10,000 sanction.  

But, while many individuals worked to complete the sale, Hadaller failed to comply with the 

court's August 6 order to "immediately take all necessary steps to expeditiously complete the 

sale." CP at 176.  Hadaller (1) did not provide his required closing funds; (2) did not pay, set 

aside, or otherwise obtain waiver of the local quarry's judgment against him that clouded title to 

the property prior to sale; (3) failed to sign the closing documents4, and (4) Hadaller placed a lis 

pendens encumbrance on the property just prior to the scheduled closing.  For these reasons, the 

trial court's order finding that Hadaller failed to purge the contempt sanction is neither manifestly 

unreasonable nor based on untenable grounds.  Holbrook, 118 Wn.2d at 315. Accordingly, the 

trial court did not abuse its discretion in finding Hadaller failed to purge his contempt.

                                       IV.  Attorney Fees

       The Rockwoods assert that they are entitled to attorney fees and costs on appeal.  RAP 

18.1 allows a party the right to recover reasonable attorney fees or expenses on review before this 

court, so long as the party requests the fees.  RCW 7.21.030(3) states that a court may order a 

person found in contempt of court to pay a party costs incurred in connection with the contempt 

proceeding, including reasonable attorney fees.  The statute also permits the award of attorney 

fees incurred by a party in defending an appeal of a contempt order.  Johnston v. Beneficial 

Mgmt. Corp. of Am., 26 Wn. App. 671, 677, 614 P.2d 661 (1980), rev'd on other grounds, 96 

4 Althauser ultimately signed the paperwork on Hadaller's behalf when Hadaller refused to sign.
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No.  41088-5-II

Wn.2d 708 (1982).   Therefore, the Rockwoods are entitled to reasonable attorney fees to be set 

by a commissioner of our court.

       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.

                                                 Johanson, J.
We concur:

Van Deren, J.

Worswick, A.C.J.

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