State ex rel. Washington County v. Betschart

• Decision Date: 20 March 1985
• Citation: 697 P.2d 206,72 Or.App. 692
• Parties: STATE of Oregon, ex rel. WASHINGTON COUNTY, a Political Subdivision of the State of Oregon, Respondent, v. Walter BETSCHART, Appellant, and Louis Betschart, Defendant. 41-010; CA A29558.
• Court: Oregon Court of Appeals

Page 206

697 P.2d 206

72 Or.App. 692

STATE of Oregon, ex rel. WASHINGTON COUNTY, a Political Subdivision of the State of Oregon, Respondent, v. Walter BETSCHART, Appellant and Louis Betschart, Defendant.

41-010; CA A29558.

Court of Appeals of Oregon.

Argued and Submitted July 25, 1984.

Decided March 20, 1985.

Terrance L. McCauley, Estacada, argued the cause for appellant. With him on the briefs were McCauley, McIlhenny, Mayfield & Brauer, Estacada.

Loretta Skurdahl, Asst. Washington County Counsel, Hillsboro, argued the cause and submitted the brief for respondent.

Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.

WARDEN, Judge.

Washington County commenced this action against defendants, alleging that defendants' use of their property violated zoning ordinances that prohibit the storage of non-operational vehicles. After a hearing, the trial court entered a judgment enjoining defendants from further violations and requiring them to bring the property into compliance with the applicable laws by removing the offending vehicles. This appeal relates to subsequent orders of the trial court finding defendant Walter Betschart in contempt for failure to comply with the provisions of the judgment and appointing a receiver to abate the improper use by removal and sale of the vehicles. We affirm.

In the original proceedings, the trial court found as fact that defendants were in violation of Article II of the Community Development Code of Washington County by maintaining an "auto-wrecking yard," not a permitted use under the relevant zoning designations. ¹ Its judgment, dated October 19, 1982, provided in relevant part:

"Defendants * * * are permanently enjoined from further violation of Article II of the Community Development Ordinance of Washington County, Relating to Zoning; in particular from using the subject property herein for:

"A. The storage of two or more motor vehicles not in running condition and the parts thereof, in the open and not being restored to operation, and the structures upon said land used for the storing of such motor vehicles and the parts thereof; and

"B. The storage of motor vehicles and/or the parts thereof whether operable or inoperable.

"II.

"Defendants shall remove all vehicles and the parts thereof and carry out the requirements set forth above in this Order on or before the expiration of 45 days from the date of this Judgment Order. At the end of said 45 day period Defendants, their employees, agents or successors in interest, must use the subject premises in accordance with the regulations of the AF-10 zoning district or any newly enacted land use laws by the County.

"However, effective immediately, Defendants, their employees, agents or successors in interest are permanently enjoined from compounding the violation by bringing on any additional vehicles or the parts thereof on the subject property in violation of the AF-10 Zoning District.

"III.

"This Court shall retain jurisdiction of the matter pending compliance with the decree."

That judgment was not appealed, and its merits are not before us.

On May 27, 1983, pursuant to an order to show cause, the court conducted a hearing to determine whether defendants were in contempt of the 1982 judgment. The court found defendant Walter Betschart ² in contempt and placed him on probation with the condition, inter alia, that he begin bringing the property into compliance by removing five vehicles a day until all vehicles and parts were removed. It further provided that a hearing would be held on June 30, 1983, to determine whether defendant had removed the vehicles at the specified rate and that, if it were then determined that he was not removing the vehicles as specified, he would be held in the Washington County jail until the property was brought into compliance with the 1982 judgment. No appeal was taken from that order.

Another hearing was held on July 5, 1983. Defendant appeared without counsel. The trial court found that the vehicles had not been removed as required by its May 27, 1983, contempt order and ordered defendant to be held at the Washington County jail until the property was brought into compliance. Defendant, through legal counsel, then moved for relief from the contempt order; after a hearing on August 5, the motion was denied.

Washington County then moved for an order providing that it abate the illegal land use by sale and removal of the vehicles and parts or, in the alternative, that a receiver be appointed for the purpose of carrying out the 1982 judgment. The trial court granted the motion to appoint a receiver and ordered that the receiver effect abatement of the illegal land use by sale and removal of the vehicles and parts. This appeal followed.

Defendant assigns error to the trial court's order denying his motion for relief from the order of contempt and to its granting of Washington County's motion to abate and to appoint a receiver with power to sell the offending vehicles. We address these assignments in turn.

Defendant's motion for relief from the contempt order was brought pursuant to ORCP 71C ³ on the stated grounds that "said Order was entered erroneously and in violation of statutory and constitutional rights guaranteed to Defendants in criminal, quasi-criminal, and contempt proceedings." Our initial inquiry is whether the order denying defendant the requested relief is an appealable order.

We begin with the basic precept that appellate court review is not a matter of right; an appellant must establish that the decision appealed from is appealable under some statutory provision. Waybrandt v. Bernstein, 294 Or. 650, 653, 661 P.2d 931 (1983). Defendant first argues that, for purposes of determining the jurisdiction of this court, the order at issue here is appealable under ORS 19.010(2)(c):

"(2) For the purpose of being reviewed on appeal the following shall be deemed a judgment or decree:

"* * *

"(c) A final order affecting a substantial right, and made in a proceeding after judgment or decree."

Assuming that the order denying defendant's motion for relief from the order issued in the contempt proceeding fits within the literal language of ORS 19.010(2)(c), we nonetheless do not agree that this court has jurisdiction under that statutory provision. Defendant could have appealed directly from the original contempt order, but he elected not to do so. ORS 33.150; ORS 19.010(4); see Dept. of Revenue v. Rombough, 295 Or. 774, 670 P.2d 1031 (1984). His motion for relief from that order, which the trial court denied, is functionally identical to a motion to vacate an order. It is well established that as a general rule "an order denying a motion to vacate an appealable order, judgment or decree is not appealable." Waybrandt v. Bernstein, supra, 294 Or. at 654, 661 P.2d 931; Columbia Auto Works v. Yates, 176 Or. 295, 308, 156 P.2d 561 (1945). The order at issue here falls squarely within that rule.

Defendant, however, also argues that this court has jurisdiction as an exception to the general rule under the rationale of Waybrandt v. Bernstein, supra, in that he is not attempting a belated appeal of the merits of the contempt order, but that he is entitled on procedural grounds to have the order set aside. Waybrandt involved a challenge to the trial court's denial of a motion to vacate a decree closing an estate. The appellant contended that the decree had been issued without notice to him, that he had a potential tort claim and that notice to potential tort claimants was required under ORS 116.093(1). The appellant argued that the decree therefore was void as to him and, accordingly, that he was entitled to have the estate reopened under ORS 116.233, which specifically provides for a procedure for vacating a decree and reopening a closed estate for further proceedings. The Supreme Court concluded that the appellant had established a colorable claim that the challenged decree was void as to him and, therefore, that this court was required to determine whether the appellant's contention was correct, because the appealability of the cited order turned on that fact. 294 Or. at 658-59, 661 P.2d 931.

Defendant did not claim in the trial court, and does not claim on appeal, that the underlying contempt order is "void"; his assertion of a right to relief is based on two alternative procedural grounds. First, he contends that he appeared at the contempt hearing without counsel and that the court failed to inform him of his right to counsel under ORCP 78D(3) and ORS 33.095(2). ⁴ Alternatively, he contends that, because the court had authority to impose criminal sanctions upon him, he was entitled to a jury trial, that any waiver of a jury trial had to be in writing, ORS 136.001(2), and that the record fails to show such a waiver. Without deciding whether those alleged procedural errors would void the contempt judgment, we conclude that defendant has not established a right to review.

We begin with the observation that the underlying order finding defendant in contempt imposed on him the sanction of incarceration for the purpose of inducing his compliance with the injunction in the judgment order, not as punishment for his failure to comply. Therefore, it is a civil contempt. State v. Thompson, 294 Or. 528, 531, 659 P.2d 383 (1983). A trial court's statutory duty under ORS 33.095 to advise an unrepresented party of the right to counsel, however, exists regardless of the nature of the contempt. See ORS 33.095(1). ⁵ The trial court in the initial contempt proceeding therefore was required to advise defendant of his rights as provided in ORS 33.095(2). ⁶ See Dept. of Revenue v. Rombough, supra, 295 Or. at 776-77, 670 P.2d 1031.

In this case, however, defendant has failed to establish a factual predicate on which a determination that the statutory procedure was violated could be made. The contempt proceeding was conducted by the circuit court, which is a court of record. Or.Const.,...