Contempt order contingent on future action was not final, and therefore unappealable

by Melanie Thwing

City of Portage Des Sioux v.  Lambert
(Missouri Court of Appeals, October 26, 2010)

Klaus Lambert and Constance Alt own real property in the City of Portage des Sioux, Missouri. Early in 2004, the city filed a petition for an injunction against them for violations of several ordinances about the safety and sanitation of buildings on their properties. An order was entered on April 27, 2004 that within 60 days of the judgment a red building and a boat be removed from the premises.  The remaining structures on the property also were found to be in such a state of disrepair that they constituted a danger.  The April 27 order included a directive that those buildings be restored, elevated or demolished within 180 days of the judgment.

By October 2006 the Lamberts and Alts had not complied, and on October 19, 2006 a second judgment was entered extending the deadline another 60 days for the red building, and another 180 days for the other buildings.

On August 4, 2009, the city filed a motion for contempt against each defendant. After a hearing, the court entered an order adjudging defendants guilty of contempt of court because of their failure to comply with the April 27, 2004 and October 19, 2006 orders. The court ordered defendants to pay a fine of $100.00 per day “until such time as they have purged themselves of this contempt by demolishing and removing the first building and the remaining buildings on the property.” It further ordered that “to ensure defendants[‘] compliance with the judgment of April 27, 2004, as extended by the order of October 19, 2006, and this judgment/order, if [defendants] fail to demolish and remove the red/rust colored building and remaining buildings on the property by November 30, 2009, the [city] is hereby authorized to demolish and remove the structures.” 

The defendants appealed this August 2009 order; however, the Missouri Court of Appeals determined that the August 2009 order could not be enforced without an additional evidentiary hearing or external proof regarding defendants’ compliance (or noncompliance) with that part of the order requiring them to demolish their buildings by November 30, 2009.  This rendered the enforcement conditional upon the occurrence or nonoccurrence of a future act, the performance of which was outside the record, making the judgment “not final,” and unappealable at the present time.  “Generally, where the enforcement of a judgment is conditional upon the occurrence or nonoccurrence of future acts, the performance or non performance of which is outside the record, the judgment is deemed indefinite and unenforceable.”  The Court of Appeals could not rule on a future act, which may or may not occur. The defendants’ appeal was dismissed.

Landowner’s defense in zoning enforcement action barred by issue/claim preclusion

by Gary Taylor

Sharkey v. Dubuque County Zoning Board of Adjustment
(Iowa Court of Appeals, November 24, 2010)

Dennis Sharkey owns two parcels in Dubuque County.  Parcel A is zoned M-1 Industrial and M-2 Heavy Industrial. Parcel B is zoned R-3 Single Family Residential.  The properties, and Mr. Sharkey, have been the subject of numerous disputes since the 1980s.  In 1988 Sharkey entered into a stipulated agreement with the county to resolve a zoning enforcement action.  Under the terms of the agreement Sharkey was “permanently enjoined from conducting or permitting any vehicle salvage operation or storage of any vehicles or junk” on the property.  In 1989 Sharkey was found in contempt of the order.  In 1994 Sharkey was convicted of unlawful storage and disposal of hazardous waste on the property and sentenced to prison.

In March 2007, the Dubuque County zoning administrator sent Sharkey two letters outlining problems with his property. In regard to Parcel A, the letter stated there were semitrailers, scrap metal, wood, appliances, and vehicles being stored outside on the property, in violation of zoning ordinances. In regard to Parcel B, the zoning administrator stated there were boats, junk cars and trucks, scrap metal, tires, and piles of wood being stored outside on the property, in violation of zoning ordinances. The letters also noted no flood plain management permit had been issued for either property.

Sharkey appealed the zoning violations to the Dubuque County Zoning Board of Adjustment, and at a June 5, 2007 hearing the Board determined both properties were being used as illegal junkyards and that the proper flood plain permits had not been obtained.  Sharkey challenged the decision in district court raising several defenses, including that he had a permissible existing nonconforming use and that the definition of “junkyard in the Dubuque County zoning ordinance was impermissibly vague.  The district court found that Sharkey was barred from using these defensed by the legal doctrine of “issue preclusion” – that these issues were decided when Sharkey and the county entered into the 1988 stipulated agreement.  Sharkey appealed to the Court of Appeals.

A party asserting issue preclusion – in this case Dubuque County – must show (1) the issue concluded in the previous action is identical to that in the present action; (2) the issue was raised and litigated in the prior action; (3) the issue was material and relevant to the disposition of the prior action; and (4) the determination of the issue was necessary and essential to the resulting judgment.  The Court of Appeals concluded that issue preclusion did apply.  The issue of whether Sharkey’s property is subject to the Dubuque County Zoning Ordinance, as well as the issue of whether the Flood Plain Management Ordinance applies, was determined in the 1988 action. The district court found the use of the property for auto salvage and the storage of vehicles and junk constituted a public nuisance and was not permitted under the Dubuque County Zoning Ordinance. The court also found Sharkey needed to follow the Dubuque County Flood Plain Management Ordinance.

The Court found that “claim preclusion” applied to Sharkey’s assertion that the term “junkyard” is impermissibly vague.  Claim preclusion involves the following elements: (1) the parties in the two actions were the same; (2) the claim in the second action could have been fully and fairly adjudicated in the prior case; and (3) there was a final judgment on the merits in the prior action.  The Court found that the issue concerning the definition of “junkyard” could have been fully and fairly adjudicated by Sharkey in 1988.

Finding sufficient evidence that Sharkey was impermissibly storing semitrailers, scrap metal, appliances, boats, junk cars and trucks, tires, and piles of wood on property in the M-2 Heavy Industrial District without a special use permit, the Court affirmed the decision of the district court.





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