Opinion
22A-PL-631
03-23-2023
Hoagland Family Limited Partnership, Appellant-Defendant, v. Town of Clear Lake, Appellee-Plaintiff.
ATTORNEYS FOR APPELLANT Michael H. Michmerhuizen Barrett McNagny, LLP Fort Wayne, Indiana Jonathon O. Cress Cress Law Group, PC Angola, Indiana ATTORNEYS FOR APPELLEE Mark J. Crandley Barnes & Thornburg, LLP Indianapolis, Indiana David K. Hawk Hawk Haynie Kammeyer & Smith, LLP Fort Wayne, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Steuben Circuit Court The Honorable William R. Walz, IV, Special Judge Trial Court Cause No. 76C01-1006-PL-425
ATTORNEYS FOR APPELLANT
Michael H. Michmerhuizen Barrett McNagny, LLP Fort Wayne, Indiana
Jonathon O. Cress Cress Law Group, PC Angola, Indiana
ATTORNEYS FOR APPELLEE
Mark J. Crandley Barnes & Thornburg, LLP Indianapolis, Indiana
David K. Hawk Hawk Haynie Kammeyer & Smith, LLP Fort Wayne, Indiana
MEMORANDUM DECISION
RILEY, JUDGE
STATEMENT OF THE CASE
[¶1] Appellant-Defendant, Hoagland Family Limited Partnership (Hoagland), appeals the trial court's grant of the petition of Appellee-Plaintiff, Town of Clear Lake (Town), seeking to have Hoagland held in contempt.
[¶2] We affirm.
ISSUE
[¶3] Hoagland presents this court with one issue, which we restate as: Whether the trial court abused its discretion when it found that Hoagland was in contempt of a court order.
FACTS AND PROCEDURAL HISTORY
[¶4] Daniel and Karen Hoagland, (individually, Daniel and Karen; collectively, the Hoaglands), are the general partners of Hoagland, an Indiana limited partnership. Hoagland owns three separate parcels of real estate located at 804, 1114, and 1121 South Clear Lake Drive, Fremont, Indiana (the Parcels). Each of the Parcels contains a residential structure hooked up to a private septic system. This case stems from the Town's efforts to have the Parcels connected to the Town's sewer system, an effort which began in 2001 and has resulted in substantial litigation.
[¶5] On June 18, 2010, the Town filed its Complaint seeking an order that Hoagland connect the Parcels to the Town's sewer system and discontinue using its private septic systems, a judgment for unpaid sewer charges and penalties, and attorney's fees. During the course of the litigation of the Town's Complaint, this matter has come before us on two previous occasions. In Town of Clear Lake v. Hoagland Family Limited Partnership, 75 N.E.3d 1081, 1085-89 (Ind.Ct.App. 2017), trans. denied, we reversed the trial court's grant of summary judgment to Hoagland and remanded for entry of partial summary judgment for the Town and for further proceedings, holding that the Town had the statutory authority to require Hoagland to connect to its sewer system without the Town first acquiring an easement to place necessary grinder pumps on the Parcels pursuant to the project plan at the time. This court expressed its "sincere hope that the parties can work together more amicably to achieve what is clearly the end result: at some point, after some procedure, Hoagland will connect to the Town's sanitary sewer through a Town-provided grinder pump." Id. at 1089 (emphasis in the original).
[¶6] On December 8, 2017, the trial court entered an order that the parties complete the connection process on or before February 28, 2018. This did not occur. After further proceedings, both parties appealed, and in Hoagland Family Limited Partnership v. Town of Clear Lake, 131 N.E.3d 731 (Ind.Ct.App. 2019), trans. denied, we reversed the trial court's orders directing that Hoagland pay penalties for its failure to connect to the Town's sewer lines, applying a newer, costlier ordinance to the sewer connection process, and assessing Hoagland the attorney's fees requested by the Town. Id. at 736-38. However, we upheld the trial court's denial of a discovery sanction Hoagland had sought against the Town. Id. at 738-39. We remanded with instructions to the trial court to vacate the relevant orders and for further proceedings. Id. at 739. In doing so, we ordered "both parties to move on in good faith as they finally eliminate this waste of everyone's resources." Id. at 732.
[¶7] More litigation ensued. On September 22, 2021, the Town filed a motion seeking a hearing to re-set a final deadline for Hoagland to connect to the Town's sewer system. On October 19, 2021, the trial court held a hearing on the Town's motion. Neither Daniel nor Karen attended the hearing. Hoagland's counsel represented to the trial court that one of the Hoaglands had symptoms of Covid-19 and that both Hoaglands had tested positive for the virus. Counsel also represented that, although he had spoken to his client that morning, both Daniel and Karen were unavailable for the hearing because they were seeking care at a medical facility. The opportunity for the parties to appear telephonically or through videocall had been provided through a prehearing court order, but Hoagland's counsel declined the trial court's offer to pause the hearing so that he could attempt to have Hoagland appear telephonically. Derek Frederickson (Frederickson), the engineer who oversaw the project of connecting the Parcels to the Town's sewer system, testified on direct examination that, to his knowledge, everything that needed to be done by the Town prior to Hoagland connecting to the sewer system had been done. On cross-examination, Frederickson stated that he could not confirm that the Town had actually inserted the pumps into the grinder station it had installed and that without the pumps being inserted into the station, the system would not be ready for Hoagland to connect. Evidence was presented that insertion of the pumps into the grinder station would take less than one day.
[¶8] On October 21, 2021, the trial court issued an order (Connection Order) that Hoagland complete the connection of each Parcel to the Town's sewer system and disconnect each Parcel from its private septic systems "not later than November 17th, 2021 at 5:00 p.m." (Appellant's App. Vol. VIII, pp. 34, 35). The trial court also directed counsel for Hoagland to submit proof of a positive Covid-19 test and medical records or billing consistent with the in-court representations made by counsel concerning the Hoaglands' unavailability for the October 19, 2021, hearing. On October 22, 2021, Hoagland filed a motion to reconsider and/or motion to correct error, to which the Town filed its opposition on October 29, 2021. On November 2, 2021, the trial court deemed Hoagland's motion to reconsider denied and denied its motion to correct error. On November 5, 2021, Hoagland filed its second motion to reconsider/motion to correct error, as well as a motion to set aside the Connection Order. On November 5, 2021, the Town responded to Hoagland's motions to reconsider and to correct error, and the Town also objected to the motion to set aside. On November 9, 2021, Hoagland filed a motion to stay the Connection Order, and the Town objected on November 12, 2021. On November 15, 2021, the trial court denied Hoagland's motion to stay, and, on November 16, 2021, denied Hoagland's second motions to reconsider and to correct error.
[¶9] On November 22, 2021, Hoagland filed a notice of appeal and motion to stay the Connection Order pending appeal. On December 20, 2021, this court denied Hoagland's motion to stay, and, on January 10, 2022, granted the Town's motion to dismiss Hoagland's appeal as moot and for lack of jurisdiction. Subsequently, this court denied Hoagland's petition for rehearing.
[¶10] On January 12, 2022, the Town filed its Verified Information for Rule to Show Cause seeking to have Hoagland held in contempt for failing to comply with the Connection Order. On January 13, 2022, the trial court ordered Hoagland to appear and show cause on February 8, 2022. On February 8, 2022, the trial court held a hearing on the Town's contempt petition. Daniel testified on behalf of Hoagland that the Parcels had not been connected to the Town's sewer system for numerous reasons, including that the Town had failed to perform requisite testing of the system, the Town had failed to supply grinder pumps and related hardware to Hoagland, and that the Town's Superintendent, Guy Rogers (Rogers), had promised to get back to Daniel about concerns Daniel had voiced about the connection but that Rogers had never done so. Daniel further testified that he felt that the system might not function properly if Hoagland tried to connect. Daniel also testified that he had had Covid-19 for three weeks and that, due to it being winter and the location of the work site on a hill, it would be impossible to connect at that time and/or that it would cost more to do so. On cross-examination, Daniel acknowledged that he is not a licensed engineer. Without any objection from Hoagland, counsel for the Town drew the trial court's attention to Frederickson's affidavit that the Town had filed as part of its objections to Hoagland's second motion to reconsider and to correct error pertaining to the Connection Order, an affidavit which addressed and negated Daniel's voiced concerns regarding the viability of the Town's sewer system and its preparedness to have Hoagland connect. The trial court noted that it would take Frederickson's affidavit into consideration.
[¶11] On February 18, 2022, the trial court issued an order which it amended on February 25, 2022, finding that Hoagland had "willfully failed and refused to comply with this [c]ourt's order of October 21, 2021, and is in contempt of [court.]" (Appellant's App. Vol. II, p. 61). The trial court ordered Hoagland to comply with the Connection Order by March 10, 2022, at 5:00 p.m. and assessed a fine of $19,920-$80 for each Parcel for the eighty-three days Hoagland was in contempt-to be subject to remission should Hoagland successfully comply with the Connection Order.
[¶12] Hoagland now appeals. Additional facts will be provided as necessary.
On March 21, 2022, Hoagland filed its notice of appeal. On May 23, 2022, the motions panel of this court granted the Town's amended motion to dismiss Hoagland's appeal of multiple interlocutory trial court orders and directed Hoagland that it could only appeal the trial court's February 18 and February 25, 2022, contempt orders. On December 2, 2022, Hoagland filed its Appellant's Amended Brief.
DISCUSSION AND DECISION
I. Standard of Review
[¶13] Hoagland challenges the trial court's order finding it in contempt of the Connection Order. "A party that is willfully disobedient to a court's order may be held in contempt of court." Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 202 (Ind. 2012); see also Ind. Code § 34-47-3-1. We review a trial court's contempt order for an abuse of its discretion. Id. In conducting our review, we consider only the evidence and reasonable inferences supporting the trial court's judgment. Ferrill v. Ferrill, 143 N.E.3d 350, 355 (Ind.Ct.App. 2020). In addition, we neither reweigh the evidence, nor do we rejudge the credibility of the witnesses. Lesh v. Chandler, 944 N.E.2d 942, 953 (Ind.Ct.App. 2011). We will reverse a trial court's contempt order only if there is no evidence or inferences to be drawn therefrom to support the order. P.S. v. T.W., 80 N.E.3d 253, 256 (Ind.Ct.App. 2017). Our supreme court has observed that "[c]rucial to the determination of contempt is the evaluation of a person's state of mind, that is, whether the alleged contemptuous conduct was done willfully." Witt, 964 N.E.2d at 202. "The trial court possesses unique knowledge of the parties before it and is in the best position to determine how to maintain its authority, justice, and dignity and whether a party's disobedience of the order was done willfully." Id. at 203.
II. Contempt
[¶14] Hoagland argues that the trial court abused its discretion when it concluded that it had willfully violated the Connection Order. Hoagland does not dispute that it did not connect to the Town's sewer system by November 17, 2021, at 5:00 p.m. or by the February 8, 2022, contempt hearing, nor does it contend that it made a good-faith effort to comply which fell short. Rather, as it did at the contempt hearing, Hoagland offers up a litany of reasons purporting to explain why its failure to comply with the Connection Order was not willful.
[¶15] Hoagland first draws our attention to Daniel's testimony at the contempt hearing that Town Superintendent Rogers had told him that the Town had not installed pressure relief valves at apexes or required cleanouts and that the Town had not yet performed grinder pump testing and deflection testing. According to Daniel, Rogers told him he would get back to Daniel about those matters but never did. Hoagland argues that its non-compliance with the Connection Order was not willful because "[n]o reasonable person, upon hearing that information, would connect to the sewer system without hearing from the Superintendent." (Appellant's Reply Br. p. 4). However, we find this argument to be unpersuasive for at least three reasons, the first being that Frederickson, the engineer on the project, testified at the October 19, 2021, hearing to re-set the deadline for Hoagland to connect that the only thing that possibly remained to be done prior to Hoagland connecting was to install the pumps into the grinder station that had otherwise been completed, something that Hoagland does not dispute was done within days of the October 19, 2021, hearing. Daniel did not testify that Rogers told him not to connect until Rogers got back to him or that Rogers told him that Hoagland was free to disobey the trial court's Connection Order until Rogers had addressed his concerns. Thus, there was evidence before the trial court from which it could infer that no valve or cleanout installation or any additional testing was required prior to Hoagland connecting and that, therefore, neither Daniel nor Hoagland had a valid basis for believing the contrary. To credit Hoagland's argument, it would be necessary for us to consider evidence that does not support the trial court's contempt order, to reweigh the evidence, and to reassess the credibility of Daniel's testimony, none of which we may do pursuant to our standard of review. See Ferrill, 143 N.E.3d at 355; Lesh, 944 N.E.2d at 953.
[¶16] We also observe that Hoagland raised these very same arguments in its second post-Connection Order motion to reconsider and to correct error, the Town countered those arguments through Frederickson's affidavit, and the trial court rejected Hoagland's arguments on November 16, 2021. The trial court could have reasonably inferred that Hoagland's continued non-compliance with its Connection Order purportedly based on concerns that had already been rejected by the court was evidence of willfulness. Hoagland has failed to offer us any legal authority indicating otherwise.
[¶17] We further find that Hoagland's argument that its non-compliance with the Connection Order was not willful because Daniel had concerns about the Town's preparedness for connection is in essence a challenge to the correctness of the Connection Order. However, as our supreme court explained in City of Gary v. Major, 822 N.E.2d 165, 169-70 (Ind. 2005) (quoting Carson v. Ross, 509 N.E.2d 239, 243 (Ind.Ct.App. 1987)), "'[a]lthough a defendant cannot be held in contempt of a void order, a defendant may be held in contempt of an erroneous order . . . Accordingly, a defendant may not challenge a contempt finding based upon the prior order's non-jurisdictional irregularities. A party must follow an erroneous order. The only remedy from an erroneous order is appeal[,] and disobedience thereto is contempt.'" Hoagland has never asserted that the trial court lacked jurisdiction to enter the Connection Order, and, therefore, Daniel's perceived concerns about the Town's preparedness, and by implication, the correctness of the Connection Order, do not excuse Hoagland's non-compliance.
[¶18] Neither do we find Hoagland's argument based on this court's decision in Steele v. Steuben Lakes Regional Waste District, 168 N.E.3d 1000 (Ind.Ct.App. 2021), to be persuasive. In Steele, the Waste District's plan for extending its sewer system was to install grinder pump systems on each property which would then be connected to the system, and it asked the property owners affected to grant an easement for the Waste District to accomplish this. Id. at 1002. When the Steeles refused to voluntarily grant an easement, the Waste District procured a court order that the Steeles must connect and pay for both the grinder pump system and the installation themselves. Id. at 1003. The Steeles appealed, and we held that the Waste District had to furnish the Steeles with a grinder pump and related hardware at no cost, just as it had the property owners who had voluntarily granted the Waste District an easement. Id. at 1005-06.
[¶19] On appeal, Hoagland does not provide us with any citation to evidence in the record showing that the Town had failed to supply it with a grinder pump, related hardware, or any other piece of equipment that it had supplied to other property owners who had voluntarily granted the Town an easement and which was necessary for Hoagland to have in order to connect by November 17, 2021. The plans for the connection project changed several times throughout the course of this litigation, and without evidence that Hoagland actually required any additional equipment to connect, there is nothing to substantiate its argument that Steele is factually implicated and that Hoagland had a good-faith basis for not connecting. Indeed, in light of Frederickson's testimony that nothing else needed to be done prior to Hoagland connecting to the system apart from the Town installing pumps in its grinder station, there was evidence from which the trial court could have reasonably inferred that Hoagland was not lacking any equipment it needed to connect. We will not reweigh this evidence that supports the trial court's contempt finding. See Lesh, 944 N.E.2d at 953. The trial court had already rejected Hoagland's Steele argument during the motion to reconsider and to correct error litigation, further undermining Hoagland's claim of justified reliance on Steele. In addition, we conclude that this argument also constitutes an impermissible collateral attack on the correctness of the Connection Order. See City of Gary, 822 N.E.2d at 169-70.
[¶20] Hoagland asserts that Daniel's infection with Covid-19 for three weeks precluded the trial court's finding that it willfully disobeyed the Connection Order. In addressing this claim, we first observe that in its appellate brief, Hoagland has made several factual assertions about the Hoaglands' bout with Covid-19 but that its citations to the record do not support those assertions. Hoagland has not cited to portions of the record showing that it complied with the trial court's directive at the end of the October 19, 2021, hearing to submit proof of the Hoaglands' Covid-19 infections, so it is unclear to us whether such proof was actually submitted. Be that as it may, Daniel testified at the contempt hearing that Hoagland had not connected to the Town's sewer system because he was infected with Covid-19 prior to the connection deadline. However, there was no evidence before the trial court that Daniel was the only person who could have implemented the Connection Order on Hoagland's behalf, and Daniel's three-week illness does not explain why Hoagland was still not in compliance with the Connection Order by the February 8, 2022, contempt hearing. The trial court could have reasonably inferred from this evidence that Daniel's Covid-19 infection did not prevent Hoagland from connecting prior to and after the November 17, 2021, deadline and that, thus, Hoagland's non-compliance was willful. Hoagland's argument on this point is yet another request that we reweigh the evidence and reassess Daniel's credibility, which we will not do as part of our review. See Lesh, 944 N.E.2d at 953.
[¶21] Lastly, Hoagland argues that its failure to connect by November 17, 2021, was not willful in light of Daniel's testimony at the February 8, 2022, contempt hearing that the combination of the weather and the topography of the work sites made it impossible and/or more costly to connect "at this time." (Transcript Vol. II, p. 166). Yet, there was no evidence before the trial court that these conditions had existed before the November 17, 2021, connection deadline or that they existed continuously up until the February 8, 2022, contempt hearing. The trial court simply could have found Daniel not to be credible or that this one line of testimony, without more, did not provide adequate evidence excusing Hoagland's non-compliance. Again, these are trial court determinations entailing witness credibility assessment and weighing of the evidence that we do not second-guess on appeal. See Lesh, 944 N.E.2d at 953. In addition, Hoagland has provided us with no legal authority indicating that a party may delay implementing a court order and then rely on the consequences of that delay to avoid a contempt finding, and we are aware of none. Accordingly, we do not disturb the trial court's contempt order.
CONCLUSION
[¶22] Based on the foregoing, we conclude that the trial court acted within its discretion when it found that Hoagland willfully disobeyed its Connection Order.
[¶23] Affirmed.
[¶24] Altice, C. J. and Pyle, J. concur