Curt Vaske, Appellant, vs. Ray Lonneman, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-99-1832

Curt Vaske,

Appellant,

vs.

Ray Lonneman,

Respondent.

Filed June 13, 2000

Shumaker, Judge

Nobles County District Court

File No. C8-94-617

Paul M. Malone, Malone & Mailander, 2605 Broadway Avenue, P.O. Box 256, Slayton, MN 56172-0256 (for appellant)

Gerald W. Von Korff, Kurt A. Deter, Rinke-Noonan, Suite 700, Norwest Center, P.O. Box 1497, St. Cloud, MN 56302-1497 (for respondent)

            Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant contends that the trial court erred in finding him in contempt, improperly awarding attorney fees, and using contempt to enforce a money judgment.  We affirm.

FACTS

Appellant Curt Vaske and respondent Ray Lonneman own adjacent parcels of real estate in Nobles County.  In 1994, Vaske sued Lonneman for damages allegedly caused when Lonneman sprayed a herbicide on Vaske's property and killed grass that had prevented soil erosion.  Lonneman counterclaimed, contending that Vaske interfered with the natural watershed on Lonneman's land by building or elevating a dike on the boundary line, which resulted in crop damage.

After a trial, the court found that Vaske had built a cement barricade that blocked the natural waterway between the properties, causing damage to Lonneman's crops.  The court ordered Vaske to remove the barricade, lower the tile intake, and "remove the land which has been built-up."  Neither party appealed.

Approximately two years later, Lonneman moved to have Vaske found in contempt for failure to comply with the court's order.  The court found that Vaske had notice of the order and the ability to comply but that he had failed to lower the tile intake and had failed to remove the built-up land.  The court found Vaske to be in constructive civil contempt and ordered his conditional confinement.  The court also awarded attorney fees and compensatory damages to Lonneman.  When Vaske failed to purge the contempt, the court ordered his incarceration.  Vaske appealed.

D E C I S I O N

Although Vaske raises on appeal issues regarding the propriety of the trial court's original judgment and the necessity of the joinder of allegedly indispensable parties to the original action, Vaske failed to appeal from that judgment.  The original judgment became the law of the case and he cannot now properly assert errors or irregularities in that judgment.  Papke v.Papke, 30 Minn. 260, 262, 15 N.W. 117, 118 (1883); see Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966) (stating "[e]ven though the decision of the trial court in the first order may have been wrong, if it was an appealable order it is still final after the time to appeal has expired.").  Therefore, our review is limited to issues arising from the contempt proceeding.

A district court's decision to invoke its contempt power should not be reversed absent an abuse of discretion.  Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986).  On appeal, this court will reverse a contempt order only if the factual findings are clearly erroneous.  Mower County Human Services ex. rel. Swancutt v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996); Minn. R. Civ. P. 52.01.  We independently review the district court's legal conclusions.  Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990).

A proper exercise of contempt powers requires subject matter and personal jurisdiction; a clear definition of the act to be performed; notice of the order and a reasonable time for compliance; specific grounds for the allegation of failure of compliance; a hearing on due notice; an opportunity for the accused to show compliance or his reasons for failure to comply; and specific formal contempt, conditional confinement, and purge findings.  Hopp v. Hopp, 279 Minn. 170, 174-75, 156 N.W.2d 212, 216-17 (1968).

Vaske contends that the original order was not specific enough to be enforceable; that he was not permitted to present evidence to show compliance or reasons for noncompliance; that the findings are not supported by the evidence; and that the court made no findings of his ability to pay attorney fees; and that the court erred in using contempt to enforce a money judgment.

1.         Specificity of the Order

Vaske claims that the original order was not specific enough to be enforceable.  The October 23, 1996, order required Vaske to remove the cement barricade, lower the tile intake, and "remove the land which has been built up."  Vaske contends that unless the order identifies the built-up land by elevations or inches, it is not specific enough to be enforced. He also argues that the order does not indicate the location of the built-up land.

The October 23, 1996, order refers to "raised ground under the fence" and a "built-up * * * field driveway."  The order of March 9, 1999, addressed and clarified the issue of the specific land to be removed:

For clarity, the built up land to be removed is the ground elevated approximately eight inches above the adjacent land, located under and by the fence, adjacent to the concrete wall (removed by Plaintiff), and the field road in this same area.  This build-up shall be removed so that the water flows naturally and is not obstructed by unnatural formations of land.

In its March 9, 1999, order the trial court noted that the built-up land was "clearly identified" during the trial that resulted in the original order and that the parties and their respective attorneys "knew exactly" what land was in issue.  Vaske never requested clarification of the original order.  Because the location and extent of the built-up land were matters clearly identified and fully litigated in the trial, the phrase "land which has been built up" was sufficiently specific to give Vaske notice of the act he was to perform.  See Hopp, 279 Minn. at 174, 156 N.W.2d at 216 (contempt must be based on violation of clearly defined duty).

2.         Presentation of Evidence

Vaske offered to present evidence consisting of (1) testimony by Vaske's parents that they were the owners of the land and did not consent to the court's order; (2) photographs showing the water flow that year; and (3) Vaske's own testimony that the water was flowing freely. 

Because Vaske did not appeal the original judgment, the only issue in the contempt hearing was whether Vaske abided by the order to "lower" the intake and remove built-up land.  Vaske's parents' testimony related only to his untimely assertion that the original order created an easement, an issue irrelevant to the contempt claim.  It was properly excluded. 

Vaske's photographs and testimony regarding current water flow did not relate to the question of whether he lowered the tile intake as required by the original order.  Vaske admitted he removed rather than lowered the intake.  Exclusion of the photographs and testimony as irrelevant was proper. 

            Furthermore, the trial court found Vaske's actions forced the water on Lonneman's property to "pond to a greater depth than previously, thus causing greater damage," and that Vaske did not make a good-faith effort to abide by the order.  The trial court has the prerogative to determine credibility.  See Novack v. Northwest Airlines, Inc., 525 N.W.2d 592, 598 (Minn. App. 1995)  (appellate courts give due regard to the trial court's credibility assessment); Minn. R. Civ. P. 52.01.  The record, including Vaske's admission that he put an incorrect date on the barricade "[j]ust to piss Mr. Lonneman off," is sufficient to permit a determination that Vaske's destruction of the tile intake was not a good-faith attempt to comply.  Nothing in the offer of proof supports a reasonable excuse for failure to comply with the original order or the contempt order.

3.         Findings Not Supported by the Evidence

Vaske contends that various findings of fact and conclusions of law in the court's October 12, 1999, order are not supported by the evidence.  Underlying factual findings are not subject to reversal unless clearly erroneous.  Minn. R. Civ. P. 52.01. Vaske fails to point to anything in the court's findings not supported by the record.  The court's findings were not clearly erroneous.

4.         Attorney Fees

Vaske argues that the trial court made no finding of his ability to pay attorney fees related to the dispute.  He also contends that contempt is inappropriate for the enforcement of a money-damages award.

In its order of October 12, 1999, the court found that Vaske "never contended that he lacks the ability to make some payment" toward the attorney fees awarded.  The court noted that Vaske had not filed "an affidavit of poverty" and had not "supplied financial statements suggesting that he cannot pay."  The court also found:

In order to establish an excuse for noncompliance, Mr. Vaske would have to show that he lacks ability to pay any amount at all and he neither makes that contention, nor could it be sustained.  Vaske has not made any effort to make any payments at all at the same time he has been willing to expend significant resources on relitigating the original decision and on filing a premature appeal.

The trial court found that Vaske had an ability to pay attorney fees and Vaske presented no evidence to the contrary.  The court did not err in awarding attorney fees and in enforcing that award through contempt proceedings.

Vaske makes the bare allegation that "it is inappropriate for the Court to use contempt as a collection tool for crop damages * * *."  He cites no authority for and makes no legal analysis of that proposition.  Unless error is clear on mere inspection, we will not consider on appeal matters not supported by legal authority.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).

Affirmed.