Harksen v. Peska
| Decision Date | 13 June 2001 |
| Docket Number | No. 21602.,21602. |
| Citation | 2001 SD 75,630 N.W.2d 98 |
| Parties | Laurie Jean Bryant HARKSEN, As Administrator of the Estate of John C. Harksen, a/k/a J.C. Harksen, Deceased, Plaintiff and Appellee, v. Gene PESKA, Defendant and Appellant, and Ruth Martens Lamont, Steven M. Johnson, Dave R. Johnson, Robert A. Warder and Joann Warder, Robert A. Warder, Trustee, and Robert A. Warder, Individually, Defendants and Appellees, and Everett P. Howe, Warren Carter Johnson and E. Ashworth, Gordon O. Gavin and Donna J. Gavin, Scott L. McCaskell and Sharla P. McCaskell, Judith Goudy and Betty Peska, Defendants. |
| Court | South Dakota Supreme Court |
Robert Warder, Rapid City, SD, Attorney for appellees.
Kenneth R. Dewell of Viken, Viken, Pechota, Leach and Dewell, Rapid City, SD, Attorneys for defendant and appellant Peska.
[¶ 1.] The trial court found Gene Peska (Peska) in civil contempt of court and entered a specific permanent injunction. Peska appeals. We affirm, in part, and reverse and remand, in part.
[¶ 2.] This matter has been before this Court on a previous occasion. Harksen v. Peska, 1998 SD 70, 581 N.W.2d 170. Additional facts are set forth in that opinion.
[¶ 3.] Peska purchased seven and one-half acres of land in a tract in the Black Hills. The entire tract was subject to restrictive covenants, which will expire in 2023. These covenants prohibited Peska from building a residence on his land. Nevertheless, Peska built a cabin on his land; he also constructed a primitive dirt road on the land to provide access to the cabin. John Harksen (Harksen), a neighboring landowner, began an action against Peska. The trial court issued a mandatory injunction requiring Peska to remove his cabin. On appeal, this Court found removal of the cabin to be too harsh a penalty, reversed and remanded, and directed the trial court to modify the injunctive relief.
[¶ 4.] After our remand, the trial court held a hearing on modification of the injunctive relief. After the hearing, the trial court proposed its own findings of fact, conclusions of law, and modified permanent injunction. The proposed modified permanent injunction ordered Peska to comply with the restrictive covenants and ordered:
that Gene Peska shall not make any additions or changes to the exterior of the cabin or to the rest of the property and Gene Peska is hereby enjoined from making any additions or changes to the exterior of the cabin or to the rest of the property for the remaining period of the covenants.
Peska objected to the trial court's proposed findings, conclusions, and modified injunction. He also proposed three different injunctions as alternatives to the trial court's proposal. Each of Peska's proposed injunctions would have enjoined him from making any additions or changes to the exterior of the cabin and to the rest of the property, "save routine and general maintenance and repairs as reasonably necessary." Two of his proposals would also have allowed Peska "to complete his road providing ingress and egress from the residence by application of gravel or similar road-building material." The trial court entered its own findings, conclusions, and modified permanent injunction, as originally proposed, and provided notice to Peska's attorney. The trial court also refused Peska's objections and each of Peska's proposed injunctions.
[¶ 5.] In the summer of 1999, after entry of the modified permanent injunction, Peska improved the road on his land. He graded the roadbed, cut ditches adjacent to the road, and spread approximately eighty tons of gravel on the road, forming a two-inch gravel base.
[¶ 6.] Robert A. Warder (Warder), one of the defendants and a neighboring landowner, signed and filed an affidavit seeking an adjudication of civil contempt. The trial court issued an order to show cause. At the show cause hearing, the trial court found Peska to be in civil contempt and issued a specific permanent injunction enjoining and restraining Peska from any and all use or occupancy of the property for the remaining term of the restrictive covenants.
[¶ 7.] Peska then moved for an order allowing him to perform eleven itemized actions on the property, each of which Peska characterized as repairs and maintenance. The trial court denied the motion without a formal hearing.
[¶ 9.] As to the first issue, we will not set aside a trial court's findings of fact unless they are clearly erroneous. Mid-Century Ins. Co. v. Lyon, 1997 SD 50, ¶ 4, 562 N.W.2d 888; Shedd v. Lamb, 1996 SD 117, ¶ 17, 553 N.W.2d 241. We review conclusions of law under a de novo standard, with no deference to the trial court's conclusions of law. Mid-Century, 1997 SD 50, ¶ 4, 562 N.W.2d 888; Shedd, 1996 SD 117, ¶ 17, 553 N.W.2d 241.
[¶ 10.] As to the second and third issues, the appropriate remedy or punishment for contempt of court, and any reconsideration thereof, lies within the sound discretion of the trial court. Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 906 (S.D.1994).
[¶ 11.] Was Peska in civil contempt of court for his conduct relating to the modified permanent injunction?
[¶ 12.] The required elements for a finding of civil contempt "are (1) the existence of an order; (2) knowledge of the order; (3) ability to comply with the order; and (4) willful or contumacious disobedience of the order." Thomerson v. Thomerson, 387 N.W.2d 509, 512-513 (S.D.1986).
[¶ 13.] Peska acknowledges the existence of the modified permanent injunction and his ability to comply with it. Peska argues that the trial court's findings with regard to knowledge and disobedience of the injunction are clearly erroneous.
[¶ 14.] The second requirement of a contempt finding is that Peska have knowledge of the existence of the modified permanent injunction. The trial court found that Peska was duly served through counsel with the modified permanent injunction and knew its contents. Peska admits personal knowledge of the modified permanent injunction. However, he denies any knowledge that his objections to the trial court's proposed findings were overruled. Thus, he argues, he did not know that his work on the road was a violation of the modified permanent injunction. [¶ 15.] Peska's admission of personal knowledge of the injunction satisfies the requirements of the second element. It is not necessary that he also have knowledge that his objections were overruled. Even if it were necessary, such knowledge is implicit in the entry of the modified permanent injunction. Peska knew of the trial court's proposals, and he knew that after he made his objections, the trial court's proposed injunction was entered without change, exactly as it had been proposed. Obviously, the trial court had overruled Peska's objections.
[¶ 16.] The fourth requirement of a contempt finding is Peska's willful or contumacious disobedience of the modified permanent injunction. The trial court found that the terms of the injunction were clear and unambiguous, that the blading and graveling of the roadway was a violation of the injunction, and, that Peska through counsel objected to the trial court's proposed findings, conclusions, and injunction because he knew it would prevent him from blading and graveling the roadway.
[¶ 17.] Peska asserts that the modified permanent injunction is ambiguous. We have previously stated:
To form the basis for a subsequent finding of contempt, an order must state the details of compliance in such clear, specific, and unambiguous terms that the person to whom it is directed will know exactly what duties or obligations are imposed upon him.
Karras v. Gannon, 345 N.W.2d 854, 859 (S.D.1984).
[¶ 18.] Peska does not explain how he believes the injunction is ambiguous. We have reviewed the terms of the modified permanent injunction and find them to be clear and unambiguous. Moreover, Peska's objections and his own proposed injunctions show that he knew exactly what duties or obligations were being imposed on him.
[¶ 19.] Did the trial court have the authority to issue the specific permanent injunction as punishment for Peska's civil contempt of court?
[¶ 20.] As punishment for Peska's contempt, the trial court entered a specific permanent injunction prohibiting Peska from using or occupying the property for the remaining term of the restrictive covenants. Peska argues that the trial court abused its discretion by ordering unauthorized, punitive sanctions in a civil contempt proceeding.
[¶ 21.] We detailed the difference between civil contempt and criminal contempt in Brummer v. Stokebrand, 1999 SD 137, 601 N.W.2d 619. The trial court and the parties to this action properly characterize this case as one of civil contempt. Warder, a neighboring landowner,...
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