Opinion
No. 5-841 / 04-1695
Filed December 21, 2005
Appeal from the Iowa District Court for Adams County, Dale B. Hagen, Judge.
Steven Mullen challenges an order finding him in contempt of court. WRIT ANNULLED IN PART, SUSTAINED IN PART AND REMANDED.
Martin L. Fisher of Fisher, Fisher Fisher, P.C., Adair, for appellant.
Richard O. McConville of Coppola, Sandre, McConville Coppola, P.C., West Des Moines, and Jeffrey B. Millhollin of Millhollin Law Office, Corning, for appellee.
Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Steven Mullen challenges by writ of certiorari an order of the district court finding him in contempt. We annul the writ as to the district court's contempt finding and costs assessed for the contempt action but sustain Mullen's challenge as to attorney's fees.
I. Background Facts and Proceedings.
Steven Mullen owns certain parcels of land in Adams County that run adjacent to property owned by Leland and Ella Mae Inman. The Inmans filed an action against Mullen alleging that a dam installed by Mullen caused water to back up and flood some of their farm land, in violation of a 1922 stipulation of then-property owners, known as the "1922 Survey and Plan." On May 5, 2003, the district court concluded:
Mullen has created a dam just west of the southwest corner of the Inman property that caused water to back up and flow onto the Inman property. The construction of this dam is in violation of the stipulation of the property owners of their respective properties in 1922, which adopted the Survey and Plan and Specifications of the Engineering firm for construction and maintenance of the drainage ditch. Inmans have been damaged and will continue to be damaged unless the dam constructed by Mullen is removed and the land placed back so that it complies with the [1922 Plan]. Inmans have no adequate remedy at law. Mullen must remove the dam and place the property back to a level set out in the [1922 Plan]. The reconstruction of Mullen's property shall be at Mullen's expense.
The court then ordered Mullen, "permanently enjoined from increasing the level of the ground adjoining the property of the [Inmans] to a level above that set out in the Survey and Plan ordered in [the Adams County case Roberts v. Johnson] in the May 1922 term." The court further ordered Mullen "to return the ground to a level that complies with the [1922] Survey and Plan within 60 days of this order." A referee was appointed by the court to oversee the reconstruction of Mullen's land.
Mullen filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2) to enlarge the district court's ruling, which was overruled, but he did not appeal the May 5th order. On July 7, 2003, the Inmans filed an application for judicial direction as the referee, after making his recommendation to the parties, had no response from Mullen. In the reported in-chambers discussion of October 20, 2003, the district court reiterated the intent of its May 5 ruling by very clearing stating that the dam that was causing water to run onto the Inman's land was to be removed. While acknowledging that the May 5 ruling may not have been perfectly worded, the court stated: "[You] know what I meant when I ruled and I think your client knows what I meant." With no further compliance by Mullen, the Inmans filed a petition for contempt against Mullen on November 10, 2003, alleging he had not complied with the May 5, 2003 order and that they continued to be damaged by water flowing onto their land.
The petition for contempt came on for hearing on June 4, 2004. Mullen admitted that he had not removed the dam or made any changes to the drainage ditch since the court's May 5, 2003 order. The district court found Mullen in contempt of the May 5 order and sentenced him to thirty days in jail, suspended if he would comply with the prior order within approximately forty days. The court also imposed a $500 fine and ordered Mullen to pay the Inmans' attorney's fees and the costs of the contempt action. Mullen now challenges the lawfulness of the district court's contempt order in this writ of certiorari.
II. Scope of Review.
Certiorari is an action at law to test the legality of an action taken by the district court or other tribunal. See Iowa R. Civ. P. 1.1401. Our review is therefore the same as from a judgment founded on a special verdict by a jury, on assigned errors of law, and we are bound by the district court's findings if supported by substantial evidence. Baker v. Bd. of Adjustment, 671 N.W.2d 405, 414 (Iowa 2003).
III. Discussion.
A. Finding of Contempt.
Mullen contends several reasons why the district court's finding of contempt as to the May 5, 2003 order was illegal. A court acts illegally when the court's findings lack substantial evidentiary support or when the court has not properly applied the law. Alons v. Iowa Dist. Ct., 698 N.W.2d 858, 863 (Iowa 2005). Proof of contempt requires a showing that the contemnor willfully violated the injunction. Ervin v. Iowa Dist. Ct., 495 N.W.2d 742, 744 (Iowa 1993). A finding of willful disobedience requires evidence of conduct that is intentional and deliberate with a bad or evil purpose, or wanton and in disregard of the rights of others, or contrary to a known duty, or unauthorized, coupled with disregard as to whether the contemnor had the right or not. Matlock v. Weets, 531 N.W.2d 118, 123-124 (Iowa 1995) (citation omitted). A finding of contempt must be established by proof beyond a reasonable doubt. Id. at 124.
Initially Mullen asserts the underlying order of May 5, 2003 was ambiguous and therefore defective because the 1922 Plan on which the May 5 order is based is ambiguous as to the original land elevations. Although Mullen filed a rule 1.904 motion to enlarge following the May 5 order, the motion did not raise any alleged ambiguity of the May 5 order or the 1922 Plan, and Mullen did not appeal the May 5 order. Generally, a party cannot collaterally attack the validity of a court order which is the basis for a contempt decision. Allen v. Iowa Dist. Ct., 582 N.W.2d 506, 508 (Iowa 1998). The proper means to challenge an underlying court order is to appeal that order. Wurpts v. Iowa Dist. Ct., 687 N.W.2d 286, 289 (Iowa Ct.App. 2004). Therefore, Mullen's claim merely attempts to collaterally attack the underlying May 5 order of which the district court found him in contempt. We therefore conclude that this issue has been waived by Mullen's failure to appeal the original May 5 order, and we do not address it.
Mullen further asserts that he complied with all "known duties" to remedy the drainage problem and comport with the 1922 Plan. To support his position, Mullen offered the expert testimony of Carl Schnoor, who opined the drainage ditch was in compliance with the 1922 Plan. However, both the court-appointed referee and Inman's expert, Jim Norman, testified to the contrary: the dam needed to be removed to comply with the May 5 order, which would stop the flow of water onto the Inman's property and follow the intent of the 1922 Plan and Survey. Mullen's argument fails in light of the substantial evidence supporting the district court's conclusions.
Next, Mullen claims the May 5 order, directing the removal of the dam appeared in the "Conclusions of Law" and not the "Order" portion of the ruling. In deciding whether a defendant is in contempt of court for violating an order, we take into consideration the spirit as well as the letter of the order to determine if its intent has been honestly and fairly obeyed. Orkin Exterminating Co., Inc. v. Burnett, 160 N.W.2d 427, 431 (Iowa 1968). No artful attempt to evade the order will be allowed to succeed, if what follows in fact constitutes a substantial violation of the order. Id. While on its face the May 5 "Order" portion of the ruling did not direct Mullen to remove the dam, we read the entirety of the ruling in concert to discern its full intent. See id. It is clear from the language of the ruling, as well as the in-chambers discussion in October 2003, that the district court directed Mullen to remove the dam to correct the ongoing flooding of the Inmans' land. Mullen did nothing to comply with the district court's clear findings and directions. We conclude the contempt findings reflect the May 5, 2003 order and did not otherwise change Mullen's duties under the ruling.
Mullen's final issue regarding the finding of contempt is a restatement of the prior issues as well as claiming that the Inmans failed to prove beyond a reasonable doubt that he willfully violated the May 5 order. He claims the district court erred by finding him in contempt as it was not supported by substantial evidence. It appears that Mullen's assertion is based on his perception of his duties pursuant to the May 5 order and that the court was ambiguous in what it directed Mullen to do. Regardless, it is undisputed at the time of the contempt hearing in June 2004 that Mullen had not altered the drainage ditch or removed the dam. A finding of willful disobedience requires evidence of "conduct that is . . . contrary to a known duty." Matlock, 531 N.W.2d at 123-124. Although Mullen claimed he did not comply with the special referee's recommendations as to the drainage ditch because Mullen believed they did not comport with the May 5 order and specification of the 1922 Plan, there was no question that Mullen was required by the May 5 ruling to remove the dam. The district court needed only find Mullen in contempt of one directive of the May 5 order, which it did when it determined Mullen had failed to remove the dam as ordered. The evidence at the hearing shows beyond a reasonable doubt that Mullen willfully failed to remove the dam, and the district court's finding of contempt in this respect is supported by substantial evidence. We annul the writ as to the finding of contempt.
B. Attorney's Fees and Costs.
Mullen's final challenge as to the legality of the contempt order concerns attorney's fees and court costs charged to him by the district court. As a general rule, an award of attorney fees is not allowed unless authorized by statute or contract. W.P. Barber Lumber Co. v. Celania, 674 N.W.2d 62, 66 (Iowa 2003); In re Marriage of Rosenfeld, 668 N.W.2d 840, 848 (Iowa 2003). Contempt is governed by statute in Iowa Code chapter 665, and the penalties for a finding of contempt are explicitly laid out. See Iowa Code §§ 665.4, 665.5 (2003). The monetary penalty under section 665.4 may not exceed $500 for a single contempt in district court. Id. Our Supreme Court has held that the penalty for contempt is limited by the provisions of sections 665.4 and 665.5, and those provisions do not permit taxing the prevailing party's costs of gathering evidence, including attorney fees, to the contemnee. See Wilson v. Fenton, 312 N.W.2d 524, 529 (Iowa 1981) ( overruled on other grounds by Ervin v. Iowa Dist. Ct., 495 N.W.2d 742 (Iowa 1993)). The district court thereby erred when it ordered Mullen to pay the Inmans' attorney's fees. We sustain the writ as to this issue and remand to the district court for entry of an order consistent with this opinion. Mullen also contends the district court unlawfully assessed court costs against him. Iowa Code chapter 625 explicitly allows for recovery of costs by the successful party against the losing party. See generally Iowa Code §§ 625.1-625.29 (2003). The district court did not err by assessing costs of the contempt action against Mullen, and we annul the writ as to the costs issue.
IV. Conclusion.
We annul the writ as to all issues raised as to the district court's finding of contempt against Mullen from the May 5 order. We likewise annul the writ as to costs assessed to Mullen for the contempt action, but sustain the writ and remand to the district court on the issue of attorney's fees ordered against Mullen.
WRIT ANNULLED IN PART, SUSTAINED IN PART AND REMANDED.
Eisenhauer, J., concurs; Sackett, C.J., concurs specially.
I concur with the result reached by the majority. I agree with Mullen that the district court's order may have been somewhat ambiguous and I am confused as to the exact plan the court intended Mullen to follow yet it was clear Mullen was ordered to remove "the dam." And while what was called "the dam" may have been a berm or a levy, clearly Mullen removed none of the three.