Opinion
23A-PL-2745
05-14-2024
Charles Jackels and Samantha Rindfield, Appellants-Defendants v. Swizek Enterprises, Inc., d/b/a Servpro of South Bend, N.E d/b/a Servpro of West St. Joseph County, Appellee-Plaintiff
ATTORNEY FOR APPELLANTS MYRA R. REID ANDERSON, AGOSTINO &KELLER, PC SOUTH BEND, INDIANA ATTORNEYS FOR APPELLEE BRENT E. INABNIT JOSHUA A. VISSER SOPKO, NUSSBAUM, INABNIT &KACZMAREK SOUTH BEND, INDIANA
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the St. Joseph Superior Court The Honorable Mark P. Telloyan, Judge Trial Court Cause No. 71D07-2009-PL-272
ATTORNEY FOR APPELLANTS MYRA R. REID ANDERSON, AGOSTINO &KELLER, PC SOUTH BEND, INDIANA
ATTORNEYS FOR APPELLEE BRENT E. INABNIT JOSHUA A. VISSER SOPKO, NUSSBAUM, INABNIT &KACZMAREK SOUTH BEND, INDIANA
MEMORANDUM DECISION
Crone, Judge
Case Summary
[¶1] Charles Jackels and Samantha Rindfield (collectively the Jackels) appeal an order for the payment of $500 in attorney's fees to Swizek Enterprises, Inc. d/b/a Servpro of South Bend (Swizek). We affirm.
Facts and Procedural History
[¶2] Swizek performed home renovation services at the Jackels' South Bend residence. In September 2020, Swizek filed a complaint for breach of contract, alleging that the Jackels failed to make a final installment payment that was due. That same month, the Jackels filed a document entitled "Claim for Relief Against the Plaintiff." Appellee's Appendix Vol. 2 at 3.
[¶3] On April 4, 2023, the trial court entered a case management order, which provided in relevant part: "Parties shall mediate pursuant to A.D.R.R.2 on or before Friday, November 17, 2023, and the parties will agree between themselves on a mediator." Id. at 21. The order also set a trial date and deadlines for discovery completion, witness lists, exhibit lists, etc. Despite the April order, the parties failed to agree upon a mediator. On August 17, Swizek filed a motion requesting a panel of mediators.
[¶4] In an August 23 order, the trial court provided a panel of three mediators and stated that Swizek's counsel shall have seven days, and the Jackels' counsel shall have fourteen days, in which to strike one mediator from the list. That same order then stated: "The parties shall mediate pursuant to A.D.R. 2 with the remaining mediator on or before Friday November 17, 2023." Id. at 25. The next day, Swizek struck one mediator. On September 6, the Jackels struck another. On September 22, Swizek's counsel called the Jackels' counsel to schedule the mediation but to no avail.
[¶5] On September 25, Swizek's counsel filed a verified application for rule to show cause, in which he stated that when he attempted to schedule the mediation, the Jackels' counsel "said [the Jackels] refuse to schedule mediation." Id. at 29. The trial court found that the rule to show cause should issue and "adjudged that the [Jackels] be required to be and appear in this Court [on October 11] to show cause, if any, Charles Jackels and Samantha Rindfield has, why they should not be adjudged in contempt of court" for the alleged refusal to schedule mediation thus "disobeying and disregarding" the April and August orders requiring mediation. Id. at 31. It was further noted that failure to appear "may result" in a body attachment. Id.
[¶6] At the October 11 hearing on the rule to show cause, the Jackels did not appear. Counsel for each of the parties appeared and presented argument. The Jackels' counsel acknowledged "several communications discussing the possibility of mediating" but expressed her view that mediation would not "be fruitful." Tr. Vol. 2 at 3. She recounted that when Swizek's counsel attempted to schedule mediation, she said, "I'm sure it would be a waste of money for the client and a waste of time and I was told that was an order from the Court. I said I'm not sure if it was an order, I think it's more like a deadline to mediate by, such as the discovery." Id. She stated that her "clients are not willing to pay" for mediation. Id. She claimed that she was seeking "clarification" as to whether mediation was required, that there was still time to mediate before November 17. Id. at 4.
[¶7] After listening to counsels' arguments and reviewing both the April 4 order and the August 23 order, the trial court stated that "the parties shall mediate" language within the orders "is unequivocal" and "means that the parties shall go to mediation, not just a deadline." Id. at 5. The trial court granted Swizek's request for $500.00 in attorney's fees and explained: "in my opinion the obstinance of the parties warrants [Swizek's counsel's] attention and extra time. He's entitled to fees for that." Id. at 5-6. In addition, the trial court extended the mediation deadline, stating, "Make sure you get your mediation done by the end of the year." Id. at 6. Within the resulting order, the trial court reiterated the "shall mediate" plain language, granted Swizek's attorney's "request for attorney's fees for bringing the Rule to Show Cause," and extended the mediation to December 31, 2023. Appealed Order at 1-2. The Jackels appeal.
Discussion and Decision
Section 1 - The Jackels have not demonstrated that the trial court abused its discretion in the contempt action.
[¶8] The Jackels first assert that they were not in contempt of court because they "were not clear about what [they] must do," so, they did not willfully disobey an order. Appellants' Br. at 7. They also question whether the trial court "abused its discretion by sanctioning [them] without finding [them] in civil contempt." Id. at 4.
The Jackels state that our "review of the trial court's decision to hold [them] in civil contempt and grant sanctions is de novo." Appellants' Br. at 7. They include no citation for this statement.
[¶9] We review a "trial court's ruling on a contempt petition for an abuse of discretion." Indy Diamond, LLC v. City of Indianapolis, 132 N.E.3d 417, 423-24 (Ind.Ct.App. 2019). Accordingly, we will affirm unless, after reviewing the record, we conclude that the trial court's decision is against the logic and circumstances before it, and we have a firm and definite belief that a mistake has been made by the trial court. Mitchell v. Mitchell, 871 N.E.2d 390, 394 (Ind.Ct.App. 2007). "Contempt of court involves disobedience of a court which undermines the court's authority, justice, and dignity." S.W. ex rel. Wesolowski v. Kurtic, 950 N.E.2d 19, 21-22 (Ind.Ct.App. 2011) (citation omitted). Contempt falls into two categories-direct and indirect. Id. Whereas direct contempt involves actions occurring near the court and of which the court has personal knowledge, indirect contempt involves actions outside the court's presence and personal knowledge. Id. A person who willfully disobeys a lawfully issued court order is guilty of indirect contempt. Ind. Code § 34-47-3-1.
[¶10] We look to the relevant statute, Indiana Code Section 34-47-3-5, which provides as follows:
(a) In all cases of indirect contempts, the person charged with indirect contempt is entitled:
(1) before answering the charge; or
(2) being punished for the contempt;
to be served with a rule of the court against which the contempt was alleged to have been committed.
(b) The rule to show cause must:
(1) clearly and distinctly set forth the facts that are alleged to constitute the contempt;
(2) specify the time and place of the facts with reasonable certainty, as to inform the defendant of the nature and circumstances of the charge against the defendant; and
(3) specify a time and place at which the defendant is required to show cause, in the court, why the defendant should not be attached and punished for such contempt.
[¶11] This case originated in 2020, when Swizek filed its complaint against the Jackels, and they filed their claim against Swizek. More than two and a half years later, the trial court issued its April 2023 order stating that the "[p]arties shall mediate pursuant to A.D.R.R.2 on or before Friday, November 17, 2023, and the parties will agree between themselves on a mediator." After four months passed with no agreement as to a mediator, Swizek requested the trial court's assistance with providing a list of three mediators. Not only did the trial court provide the list, but, in its August order, it stressed: "The parties shall mediate pursuant to A.D.R. 2 with the remaining mediator on or before Friday November 17, 2023." The very next day, Swizek struck one mediator. Almost two weeks later, the Jackels struck another. When two more weeks passed with no mediation set, Swizek's counsel contacted the Jackels' counsel but got nowhere.
[¶12] On September 25, Swizek filed a verified application for rule to show cause, alleging that, according to the Jackels' counsel, the Jackels "refuse to schedule" the mediation. In issuing the rule to show cause, the trial court set out its expectations that the Jackels would appear and show cause as to "why they should not be adjudged in contempt of court" for the alleged refusal to schedule the mediation thus "disobeying and disregarding" the April and August orders requiring mediation. Appellee's App. Vol. 2 at 31. The Jackels were served with a rule of the court in accordance with Indiana Code Section 34-47-3-5.
[¶13] After service of a rule to show cause, the following statute guided the trial court's actions:
(a) If the defendant:
(1) fails to appear in court at the time and place specified in the rule provided for in section 5 of this chapter, to answer the rule; or
(2) appears in court, but fails or refuses to answer concerning the alleged contempt; the court may proceed at once, and without any further delay, to attach and punish the defendant for contempt.
(b) If the defendant answers to the facts set forth in the rule by:
(1) showing that, even if the facts set forth are all true, they do not constitute a contempt of the court; or
(2) denying, or explaining, or confessing and avoiding the facts, so as to show that no contempt was intended;
the court shall acquit and discharge the defendant.
(c) If the defendant's answer to the rule does not sufficiently deny, explain, or avoid the facts set forth in the rule, so as to show that no contempt has been committed, the court may proceed to attach and punish the defendant for the contempt[.]Ind. Code § 34-47-3-6.
[¶14] Despite notice of the issue, the Jackels did not appear at the hearing. Consequently, they did not deny that they had stated their refusal to schedule the mediation and did not explain why they refused to schedule the mediation. Their counsel, who did appear, opined that the "parties are way too far apart for the mediation to be fruitful" and stated that she was "sure it would be" a waste of time and money. Tr. Vol. 2 at 3. She stated that her "clients are not willing to pay" for the mediation. Id. She then claimed to be unsure if the trial court had ordered mediation.
[¶15] The Jackels' counsel's professed uncertainty relates to the willful disobedience required for indirect contempt. We are not persuaded that the trial court was required to give credence to her confusion. The April order stated: "Parties shall mediate pursuant to A.D.R.R.2 on or before Friday, November 17, 2023, and the parties will agree between themselves on a mediator." The August order stated: "The parties shall mediate pursuant to A.D.R. 2 with the remaining mediator on or before Friday November 17, 2023." Neither the April nor the August order stated, "the parties may mediate." Likewise, neither the April nor the August order stated, "if the parties choose to mediate, mediation must be completed by November 17." The language used was mandatory rather than permissive.
[¶16] To recap, the trial court was faced with the fact that no significant movement toward the court-ordered mediation had occurred despite the fast-approaching deadline that had been set several months previously and then was confirmed in a second order. At the hearing, consistent with his verified application for rule to show cause, Swizek's counsel stated that despite his attempt to schedule the mediation, the Jackels "are at this time unwilling to do so." Id. at 2. He reiterated that when he called their counsel, she told him that the Jackels are "not interested in mediating." Id. In addition, the trial court heard the Jackels' counsel's comments, which were consistent with the allegation of their refusal to schedule the mediation. The Jackels did not appear at the hearing to offer denials, disagreements, or explanatory information as to their refusal to schedule the mediation.
[¶17] Given these circumstances, it is quite reasonable for the trial court to have concluded that the Jackels were in indirect contempt for refusing to schedule the mediation and pronouncing that they refused to comply with the orders. Indeed, it is abundantly clear that at the contempt hearing, the trial court found the Jackels in indirect contempt when it confirmed that "shall mediate" is unequivocal and then referenced the Jackels' obstinance (despite being twice ordered to mediate) in support of a reimbursement of attorney's fees. The trial court should have been more precise in its wording at the contempt hearing. However, obstruction of scheduling and refusal to comply with orders will not be condoned and do warrant a contempt finding. We will not elevate form over substance by reversing and remanding for entry of what we have no doubt would be simply a more explicit finding of indirect contempt due to the refusal to schedule the mediation and pronouncing their refusal to comply with clear orders. We cannot say that the trial court's decision is against the logic and circumstances before it, nor do we have a firm and definite belief that a mistake has been made. An abuse of discretion has not been shown.
Instead of refusing to schedule the mediation, the Jackels should have filed a motion to reconsider the orders.
Section 2 - The Jackels have not demonstrated that the nominal attorney fee award was an abuse of discretion.
[¶18] The Jackels' second issue is "[w]hether the trial court abused its discretion by awarding [Swizek] attorneys' fees in a civil contempt proceeding without basing the attorneys' fees on evidence of actual damages[.]" Appellants' Br. at 4.
[¶19] "[O]nce a party is found in contempt, the trial court has the inherent authority to compensate the aggrieved party for losses and damages resulting from another's contemptuous actions, including an award of attorney's fees." Madden v. Phelps, 152 N.E.3d 602, 615 (Ind.Ct.App. 2020). In other words, when a court exercises its civil contempt power-as opposed to its criminal contempt power-the power is not to be used in a primarily punitive fashion, but instead to "coerce action for the benefit of the aggrieved party." In re Paternity of M.P.M.W., 908 N.E.2d 1205, 1209 (Ind.Ct.App. 2009). The determination of damages in a contempt proceeding is within the trial court's discretion. In re Adoption of A.A., 51 N.E.3d 380, 387-88 (Ind.Ct.App. 2016), trans. denied. We will reverse an award of damages only if there is no evidence to support it. Id.
[¶20] Having concluded that the indirect contempt finding does not warrant reversal, we recognize that the trial court had authority to compensate Swizek for losses or damages, including an award of attorney's fees, resulting from the Jackels' contemptuous actions. Indeed, such fees could serve the dual purpose of reimbursement as well as coercing action for Swizek's benefit, i.e., encouraging compliance with the mediation orders. The far better practice would have been for Swizek's counsel to have submitted an affidavit setting out the time expended contending with the Jackels' refusal to schedule mediation. However, the trial court was well aware that Swizek's counsel's enforcement efforts included, at a minimum, (1) engaging in communications with the Jackels' attorney to try to schedule the mediation, (2) drafting and filing the verified application for rule to show cause, and (3) attending the hearing on the matter. So, while the exact amount of attorney's fees generated due to the Jackels' obstinate conduct was unclear, the trial court's award of $500 was modest, at best, given the work required to address their refusal to schedule the mediation. See Cavallo v. Allied Physicians of Michiana, LLC, 42 N.E.3d 995, 1009 (Ind.Ct.App. 2015) (noting that trial judge "may look at the responsibility of the parties in incurring the attorney fees, and the trial judge has personal expertise he or she may use in determining reasonable attorney fees"); cf. Ind. Prof. Cond. R. 1.5 (reasonableness of fee includes factors such as time and labor required, skill, fee customarily charged in locality for similar legal services); cf. Geberin v. Geberin, 360 N.E.2d 41, 47 (Ind.Ct.App. 1977) (noting in certain cases, "trial court may take judicial notice of what a reasonable attorney's fee would be, even absent any evidence in the record."). We conclude that the Jackels have not demonstrated that the $500 award for attorney's fees was an abuse of discretion.
[¶21] Affirmed.
Pyle, J., concurs.
Bailey, J., dissents with a separate opinion.
Bailey, Judge, dissenting.
[¶22] An alleged contemnor possesses certain due process rights. Indiana has codified the procedural requirements for finding indirect contempt at Indiana Code Section 34-47-3-5, and this statute '"[e]ssentially ... fulfills the due process requirement that a contemnor be provided with adequate notice and an opportunity to be heard."' Reynolds v. Reynolds, 64 N.E.3d 829, 833 (Ind. 2016) (quoting In re Contempt of Wabash Valley Hosp., Inc., 827 N.E.2d 50, 62 (Ind.Ct.App. 2005)). Jackels was served with a rule of the court and afforded an opportunity to be heard in accordance with the foregoing statute.
[¶23] But at the conclusion of the brief hearing, the trial court simply made no ruling on the alleged contempt; rather, as Jackels' counsel pressed for an explanation after $500.00 had been summarily awarded to Swizek, the court referred to "obstinance of the parties" to justify the fees. (Tr. Vol. II, pg. 5.) In lieu of an affidavit or other evidence to support the fees award, the court stated that counsel was "entitled to fees" because of his "attention and extra time." (Id. at 6.)
[¶24] In my view, Jackels possessed a due process right to the trial court's compliance with Indiana Code Section 34-47-3-6, which sets forth the action of the court to be taken following service of a rule to show cause and hearing. That is, the trial court may forthwith "attach and punish the defendant for contempt" if there has been failure to appear or answer; "acquit and discharge the defendant" if an answer shows a lack of contempt or intended contempt; or "proceed to attach and punish the defendant for the contempt" if the answer does not sufficiently show that no contempt has been committed. Id.
[¶25] My colleagues are persuaded that "it is quite reasonable for the trial court to have concluded that the Jackels were in indirect contempt for refusing to schedule the mediation and pronouncing that they refused to comply with the orders." Majority opinion at 10. Had the trial court entered a finding of indirect contempt for the alleged refusal to telephonically schedule the mediation, which it did not, I would agree that such was within the bounds of reasonableness. Certainly, the bold characterization by Jackels' counsel that mediation was "a waste of money for the client" and "a waste of time" strikes me as disrespectful in light of the clear directive to so engage. (Tr. Vol. II, pg. 3.) On the other hand, I cannot conclude, based upon my review of the exceedingly short record, that Jackels' counsel made a "pronouncement of refusal to comply with a court order." Majority opinion at 9. Rather, she stated that she "would likely ask for relief of the order if this is an order," and repeatedly attempted to direct the trial court's attention to the fact that the mediation deadline had not passed. (Tr. Vol. II, pg. 3.) The trial court did not respond to this argument.
[¶26] In sum, the trial court did not decide whether Jackels had or had not committed indirect contempt of court, in accordance with Jackels' due process rights. Absent a finding, there is no basis for an award of attorney fees. Moreover, the award of attorney fees, nominal or otherwise, has no independent evidentiary support in this record. For these reasons, I respectfully dissent.