WA – Zipfel v Ellis – Court of Appeals Div 3 (2007) 24902-6-III

The Court of Appeals of Washington, Division Three.

KIMBERLY R. ZIPFEL, a single person, Respondent,
v.
JIMMY ELLIS, CLARK and TONI LEAH, CLARK, husband and wife, aka JIMMY ELLIS CLARK and TONI LEAH CLARK, husband and wife, Appellants.

No. 24902-6-III
Filed: June 28, 2007

BROWN, J.

Jimmy Ellis Clark and Toni Leah Clark, pro se, appeal the trial court’s summary order favoring Kimberly R. Zipfel that ejected the Clarks from real property Mr. Zipfel purchased at a tax sale. The Clarks contend: (1) material facts remain barring summary judgment, and (2) the trial court erred in ordering contempt for their refusal to leave the property. We affirm.

History

• Reported in full at Zipfel v. Clark, 2007 Wash. App. LEXIS 1762 (Wash. Ct. App., June 28, 2007)
• Reconsideration denied by Zipfel v. Ellis, 2007 Wash. App. LEXIS 2619 (Wash. Ct. App., Sept. 7, 2007)
• Review denied by Zipfel v. Clark, 163 Wn.2d 1037, 187 P.3d 269, 2008 Wash. LEXIS 565 (2008)
• US Supreme Court certiorari denied by Clark v. Zipfel, 129 S. Ct. 908, 2009 U.S. LEXIS 431 (U.S., 2009)

FACTS

In July 1999, the Clarks purchased real property, parcel No. 5067350, by a warranty deed from Larry W. Cole. The Clarks did not pay an excise tax on the sale, record the deed, or pay real property taxes on the parcel in the following years. In September 2003, the Stevens County treasurer sued to foreclose its tax lien on the property. Deputy Sheriff Tim Blackman posted a copy of the notice and summons on a tree near the property and talked with Mr. Clark. Notice of the tax sale was published in a local newspaper before December 2003, when the Stevens County treasurer sold the property to Mr. Zipfel at a public auction. Mr. Zipfel received a treasurer’s deed. Although the Clarks appeared to protest at the tax sale and moved unsuccessfully to vacate the judgment, they did not appeal. Mr. Zipfel attempted to get the Clarks to pay rent, but the Clarks refused to pay rent or vacate.

After one aborted attempt to remove the Clarks in October 2005, Mr. Zipfel sued for ejectment. In a January 10, 2006 summary judgment hearing, the Clarks partly contended the tax foreclosure was flawed and thus, Mr. Zipfel’s interest in the property was defective. The Clarks’ argument is difficult to summarize, but generally they argued the State had no right to tax their property or force its registration because they held “allodial” title acquired by silver coins. Report of Proceedings (Jan. 27, 2006) at 10.

Reasoning the Clarks’ failure to appeal the 2003 tax-foreclosure barred any argument that Mr. Zipfel’s treasurer’s deed was defective, the court granted summary judgment to Ms. Zipfel. It ordered the Clarks to vacate the property by a February 2006 deadline. The Clarks appealed without staying the trial court order or vacating the property. In June 2006, the court held the Clarks in contempt for intentionally failing to comply with the January 10 order. Again, the court ordered the Clarks off the property by June 9, 2006 to purge the contempt, and directed the sheriff to forcefully remove them, if necessary. Deputy Sheriff Brad Manke removed the Clarks from the property on June 9. The Clarks appeal the summary judgment and contempt orders.

ANALYSIS

A. Summary Judgment

The issue is whether the trial court erred in granting summary judgment in favor of Mr. Zipfel. The Clarks contend material fact issues remain concerning lack of notice in the tax foreclosure proceeding.

We review summary judgment grants de novo. Korslund v. Dyncorp Tri-Cities Servs. Inc., 156 Wn.2d 168, 177, 125 P.3d 119 (2005). Summary judgment is proper where, viewing the facts in a light most favorable to the nonmoving party, no genuine issues of material fact exist and the issues can be resolved as a matter of law. Id.

In an action for ejectment, the party with superior title prevails. RCW 7.28.120. A tax deed is “a new title which is superior to any prior possessory rights, however exclusive or adverse.” Label v. Cleasby, 13 Wn. App. 789, 791, 537 P.2d 859 (1975); RCW 84.64.180. An aggrieved party may commence an action to cancel or set aside a tax deed within three years after the issuance date. RCW 4.16.090.

A tax deed may be defeated under three circumstances: (1) the taxes have been paid, (2) the land is not subject to taxation, or (3) the tax payer made a bona fide attempt to pay the taxes and a public official frustrated payment. RCW 84.64.180; Cleasby, 13 Wn. App. at 791-92. Unknown persons having an interest in the property (persons not listed on the treasurer’s rolls or holding a recorded interest) are sufficiently served notice of a tax foreclosure proceeding by a single publication in a local newspaper of general circulation. RCW 84.64.050.

First, the Clarks’ foreclosure issues are not properly before the court because they failed to appeal their unsuccessful challenge to the tax foreclosure proceeding or sue to cancel the tax deed and quiet title in the property. RCW 4.16.090. Accordingly, the Clarks were barred in later attempting to raise the invalidity of the treasurer’s deed as a defense to summary judgment for ejectment.

Second, the Clarks failed to raise any issue of material fact regarding notice or the validity of Mr. Zipfel’s superior title. They did not show that the taxes had been paid, that the property was tax-exempt, or that they attempted to pay taxes. Considering the Clarks’ unrecorded deed and the publication requirements of RCW 84.64.050, notice of the tax sale was sufficient. Moreover, the Clarks do not dispute that they received notice of the tax sale. The record shows they appeared at the tax sale, argued against it, and unsuccessfully participated in the foreclosure suit without appeal. Given this record, the court did not err in granting summary judgment for ejectment.

B. Contempt

The issue is whether the trial court erred by finding the Clarks in contempt. The Clarks contend the court lacked jurisdiction to enter a contempt finding since they appealed the summary judgment order and the evidence was insufficient to support the court’s finding that they unlawfully remained on the property.

We review contempt findings for abuse of discretion. State ex rel. Shafer v. Bloomer, 94 Wn. App. 246, 250, 973 P.2d 1062 (1999). “Contempt” is an intentional disobedience of a lawful order. RCW 7.21.010(1)(b); Smith v. Whatcom County Dist. Court, 147 Wn.2d 98, 105, 51 P.3d 790 (2002). A trial court may impose a remedial sanction, enforcing compliance of a prior court order, where the order has not been stayed under RAP 8.1 or 8.3. RAP 7.2(a)(c); RCW 7.21.030(1), (2)(c); Smith, 147 Wn.2d at 105.

Here, the court ordered the Clarks to vacate the property by an extended deadline of February 10, 2006. Four months later, the Clarks remained on the property. The court found the Clarks intentionally failed to comply with the order while having the ability to do so, and that its prior order had not been stayed pending appeal. Further, the court allowed the contempt to be purged if the Clarks vacated by the June deadline, which they failed to do. Given this record, the court was authorized to enter a contempt finding and did not abuse its discretion.

C. Attorney Fees

Mr. Zipfel requests attorney fees on appeal under RAP 18.9(a), contending the Clarks filed a frivolous appeal. We may order a party filing a frivolous appeal “to pay terms or compensatory damages” to the opposing party. RAP 18.9(a). “An appeal is frivolous if there are no debatable issues upon which reasonable minds might differ and it is so totally devoid of merit that there was no reasonable possibility of reversal.” Fay v. Nw. Airlines, Inc., 115 Wn.2d 194, 200-01, 796 P.2d 412 (1990). Mr. Zipfel convinces us that no debatable issues were presented regarding either the summary judgment or the contempt orders. Thus, we grant his attorney fees request. Said amount shall be determined by a Commissioner of this court pursuant to compliance with RAP 18.1.

Affirmed.

A majority of the 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.

SCHULTHEIS, A.C.J. and KULIK, J., concur.