MEMORANDUM DECISION Jun 04 2015, 9:27 am Pursuant to Ind. Appellate Rule 65(D), this Jun 04 2015, 9:27 am
Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT Donald J. Smith Stark & Smith, LLP Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Control Building Services, Inc., June 4, 2015
Appellant-Defendant, Court of Appeals Case No. 49A04-1412-PL-547 v. Appeal from the Marion Superior Court
Simon Services, Inc., d/b/a The Honorable James B. Osborn, Simon Business Network, Judge Appellee-Plaintiff. Cause No. 49D14-0807-PL-33720
Najam, Judge.
Statement of the Case [1] Control Building Services, Inc. (“Control”) was found in contempt of a trial
court order, which mandated that Control comply with a settlement agreement
entered into with Simon Services, Inc., d/b/a Simon Business Network
(“Simon”), and assessed Control a $10,000 per diem sanction for every day that Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PL-547| June 4, 2015 Page 1 of 6 Control remained in contempt. Control now appeals and presents two issues
for our review. However, sua sponte, we address one dispositive issue, namely,
whether the trial court erred when it used its contempt power to enforce an
obligation to pay a money judgment.
[2] We reverse.
Facts and Procedural History [3] Following a protracted lawsuit, which began in 2008, Control and Simon
entered into a settlement agreement (“the agreement”) on May 28, 2013.
Under the terms of the agreement, Control agreed to pay Simon a total amount
of $850,000, made payable in three installments.1 Control agreed that the first
installment, which was the largest at $300,000, would be immediately due, and
the last two installments—each of $275,000—would be due on January 1, 2014,
and June 30, 2014, respectively. In the event that Control paid the first
installment to Simon, Simon agreed to dismiss the underlying lawsuit with
prejudice within ninety days. However, if Control failed to pay an installment,
Simon was entitled to recover an award of the attorney’s fees it incurred as a
result of such failure.
[4] Control did not pay the first installment, and, on June 27, 2013, Simon moved
to enforce the agreement. After a hearing on July 29, the trial court ordered
1 Ed Turen, the principal owner of Control, personally guaranteed payment of the second and third installments.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PL-547| June 4, 2015 Page 2 of 6 Control to pay the first installment on or before August 12, and, on its own
initiative, the court stated that, if Control failed to do so, “the Court will find
Control . . . in contempt of this order and will sanction Control . . . $10,000.00
a day for every day from and including August 13, 2013[,] until and including
the date payment is made.” Appellant’s App. at 2. Control paid the first
installment before August 13, and Simon dismissed the case with prejudice on
December 23.
[5] Control also paid its second installment on January 1, 2014, but it did not pay
the final installment on or before June 30. Thus, on August 5, Simon moved to
set aside the dismissal of the underlying lawsuit and, for the second time, to
enforce the settlement agreement. After a hearing, the trial court reinstated the
lawsuit on September 26, and, after a subsequent hearing on October 31, the
court ordered Control to pay the final installment within ten days of the order.
Again on its own accord, the court stated that Control would be “fined
$10,000.00 a day for every day after [November 10, 2014,] until full amount is
paid.” Appellant’s App. at 54. Ultimately, following a review hearing on
December 1, the trial court assessed a $10,407.802 fine against Control, which
was “in addition to the $275,000 plus applicable pre-judgment interest, already
owed by [Control] to [Simon] under the settlement agreement and the Court’s
previous Orders.” Appellant’s App. at 28. This appeal ensued.
2 Control did not supply the trial court’s December 1 order in its Appendix, so we do not know how the court arrived at the $10,407.80 figure stated in the Chronological Case Summary.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PL-547| June 4, 2015 Page 3 of 6 Discussion and Decision [6] At the outset, we note that Simon does not file an appellee’s brief, and, as we
have stated:
[w]hen an appellee has not filed an answer brief, we need not undertake the burden of developing an argument on the appellee’s behalf. Rather, we may reverse the trial court if the appellant presents a case of prima facie error. Prima facie error means error at first sight, on first appearance, or on the face of it. If an appellant does not meet this burden, we will affirm.
In re Paternity of M.F., 956 N.E.2d 1157, 1162-63 (Ind. Ct. App. 2011) (internal
citations omitted). With this standard in mind, we turn to the merits of
Control’s appeal.
[7] Control first contends that the trial court violated the due process requirements
of Indiana’s indirect contempt of court statute, see Ind. Code § 34-47-3-5, when
it found Control in contempt of its October 31 order. Second, and in the
alternative, Control argues that, even if the trial court’s finding of contempt was
proper, the $10,000 per diem fine constitutes punitive damages, which are
impermissible in the context of civil contempt.
[8] But we need not address Control’s arguments because it is well-settled Indiana
law that “all forms of contempt are generally unavailable to enforce an
obligation to pay money.” Cowart v. White, 711 N.E.2d 253, 531 (Ind. 1999)
(citing Pettit v. Pettit, 626 N.E.2d 444, 447 (Ind. 1993); Marsh v. Marsh, 162 Ind.
210, 70 N.E. 154, 155 (1904)), clarified on reh’g, 716 N.E.2d 401. While Control
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PL-547| June 4, 2015 Page 4 of 6 does not argue that contempt is not an available sanction, an appellate court
may address an issue of sufficient importance sua sponte. See, e.g., Bufkin v. State,
700 N.E.2d 1147, 1152 n.5 (Ind. 1998). We believe that the dispositive issue is
whether the trial court erred when it used its contempt power to enforce
collection of a money judgment. We hold that it did.
[9] “Civil contempt is the failing to do something that a court in a civil action has
ordered to be done for the benefit of an opposing party.” Flash v. Holtsclaw, 789
N.E.2d 955, 958 (Ind. Ct. App. 2003). “[A] determination of whether a party is
in contempt of court is a matter committed to the trial court’s sound
discretion[,] and we will reverse a trial court’s decision in that regard only for
an abuse of discretion.” Kicken v. Kicken, 798 N.E.2d 529, 533 (Ind. Ct. App.
2003). “An abuse of discretion occurs when the decision is against the logic
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Jun 04 2015, 9:27 am Pursuant to Ind. Appellate Rule 65(D), this Jun 04 2015, 9:27 am
Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT Donald J. Smith Stark & Smith, LLP Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Control Building Services, Inc., June 4, 2015
Appellant-Defendant, Court of Appeals Case No. 49A04-1412-PL-547 v. Appeal from the Marion Superior Court
Simon Services, Inc., d/b/a The Honorable James B. Osborn, Simon Business Network, Judge Appellee-Plaintiff. Cause No. 49D14-0807-PL-33720
Najam, Judge.
Statement of the Case [1] Control Building Services, Inc. (“Control”) was found in contempt of a trial
court order, which mandated that Control comply with a settlement agreement
entered into with Simon Services, Inc., d/b/a Simon Business Network
(“Simon”), and assessed Control a $10,000 per diem sanction for every day that Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PL-547| June 4, 2015 Page 1 of 6 Control remained in contempt. Control now appeals and presents two issues
for our review. However, sua sponte, we address one dispositive issue, namely,
whether the trial court erred when it used its contempt power to enforce an
obligation to pay a money judgment.
[2] We reverse.
Facts and Procedural History [3] Following a protracted lawsuit, which began in 2008, Control and Simon
entered into a settlement agreement (“the agreement”) on May 28, 2013.
Under the terms of the agreement, Control agreed to pay Simon a total amount
of $850,000, made payable in three installments.1 Control agreed that the first
installment, which was the largest at $300,000, would be immediately due, and
the last two installments—each of $275,000—would be due on January 1, 2014,
and June 30, 2014, respectively. In the event that Control paid the first
installment to Simon, Simon agreed to dismiss the underlying lawsuit with
prejudice within ninety days. However, if Control failed to pay an installment,
Simon was entitled to recover an award of the attorney’s fees it incurred as a
result of such failure.
[4] Control did not pay the first installment, and, on June 27, 2013, Simon moved
to enforce the agreement. After a hearing on July 29, the trial court ordered
1 Ed Turen, the principal owner of Control, personally guaranteed payment of the second and third installments.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PL-547| June 4, 2015 Page 2 of 6 Control to pay the first installment on or before August 12, and, on its own
initiative, the court stated that, if Control failed to do so, “the Court will find
Control . . . in contempt of this order and will sanction Control . . . $10,000.00
a day for every day from and including August 13, 2013[,] until and including
the date payment is made.” Appellant’s App. at 2. Control paid the first
installment before August 13, and Simon dismissed the case with prejudice on
December 23.
[5] Control also paid its second installment on January 1, 2014, but it did not pay
the final installment on or before June 30. Thus, on August 5, Simon moved to
set aside the dismissal of the underlying lawsuit and, for the second time, to
enforce the settlement agreement. After a hearing, the trial court reinstated the
lawsuit on September 26, and, after a subsequent hearing on October 31, the
court ordered Control to pay the final installment within ten days of the order.
Again on its own accord, the court stated that Control would be “fined
$10,000.00 a day for every day after [November 10, 2014,] until full amount is
paid.” Appellant’s App. at 54. Ultimately, following a review hearing on
December 1, the trial court assessed a $10,407.802 fine against Control, which
was “in addition to the $275,000 plus applicable pre-judgment interest, already
owed by [Control] to [Simon] under the settlement agreement and the Court’s
previous Orders.” Appellant’s App. at 28. This appeal ensued.
2 Control did not supply the trial court’s December 1 order in its Appendix, so we do not know how the court arrived at the $10,407.80 figure stated in the Chronological Case Summary.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PL-547| June 4, 2015 Page 3 of 6 Discussion and Decision [6] At the outset, we note that Simon does not file an appellee’s brief, and, as we
have stated:
[w]hen an appellee has not filed an answer brief, we need not undertake the burden of developing an argument on the appellee’s behalf. Rather, we may reverse the trial court if the appellant presents a case of prima facie error. Prima facie error means error at first sight, on first appearance, or on the face of it. If an appellant does not meet this burden, we will affirm.
In re Paternity of M.F., 956 N.E.2d 1157, 1162-63 (Ind. Ct. App. 2011) (internal
citations omitted). With this standard in mind, we turn to the merits of
Control’s appeal.
[7] Control first contends that the trial court violated the due process requirements
of Indiana’s indirect contempt of court statute, see Ind. Code § 34-47-3-5, when
it found Control in contempt of its October 31 order. Second, and in the
alternative, Control argues that, even if the trial court’s finding of contempt was
proper, the $10,000 per diem fine constitutes punitive damages, which are
impermissible in the context of civil contempt.
[8] But we need not address Control’s arguments because it is well-settled Indiana
law that “all forms of contempt are generally unavailable to enforce an
obligation to pay money.” Cowart v. White, 711 N.E.2d 253, 531 (Ind. 1999)
(citing Pettit v. Pettit, 626 N.E.2d 444, 447 (Ind. 1993); Marsh v. Marsh, 162 Ind.
210, 70 N.E. 154, 155 (1904)), clarified on reh’g, 716 N.E.2d 401. While Control
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PL-547| June 4, 2015 Page 4 of 6 does not argue that contempt is not an available sanction, an appellate court
may address an issue of sufficient importance sua sponte. See, e.g., Bufkin v. State,
700 N.E.2d 1147, 1152 n.5 (Ind. 1998). We believe that the dispositive issue is
whether the trial court erred when it used its contempt power to enforce
collection of a money judgment. We hold that it did.
[9] “Civil contempt is the failing to do something that a court in a civil action has
ordered to be done for the benefit of an opposing party.” Flash v. Holtsclaw, 789
N.E.2d 955, 958 (Ind. Ct. App. 2003). “[A] determination of whether a party is
in contempt of court is a matter committed to the trial court’s sound
discretion[,] and we will reverse a trial court’s decision in that regard only for
an abuse of discretion.” Kicken v. Kicken, 798 N.E.2d 529, 533 (Ind. Ct. App.
2003). “An abuse of discretion occurs when the decision is against the logic
and effect of the facts and circumstances before the court or is contrary to law.”
Id. And, as stated, it is contrary to law for a court to use its contempt power to
enforce the collection of a money judgment. See, e.g., Cowart, 711 N.E.2d at
531.
[10] A money judgment is “any order that requires the payment of a sum of money
and states the specific amount due, whether labeled as a mandate or a civil
money judgment.” Hilliard v. Jacobs, 916 N.E.2d 689, 694 (Ind. Ct. App. 2009)
(emphasis removed), trans. denied. “The key to a money judgment is the
statement of an amount due. A money judgment must be certain and definite.
It must name the amount due.” United Farm Bureau Mut. Ins. Co. v. Ira, 577
N.E.2d 588, 593 (Ind. Ct. App. 1991), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PL-547| June 4, 2015 Page 5 of 6 [11] Here, the trial court’s Order Granting Second Motion to Enforce Settlement
Agreement “ORDERED” that “Control . . . shall, within ten days of the date of
this Order, pay to Plaintiff the sum of $275,000, as required under the terms of
the Settlement Agreement.” Appellant’s App. at 54. If Control failed to do so,
the court further stated that “[Control will] be fined $10,000.00 a day for every
day after [November 10, 2014,] until full amount is paid.” Id. The trial court’s
order, therefore, mandated that Control pay a specific and definite sum of
money to Simon, which is “the practical equivalent of a civil money judgment.”
Hilliard, 916 N.E.2d at 694 (quoting Wininger v. Purdue Univ., 666 N.E.2d 455,
458 (Ind. Ct. App. 1999), trans. denied).
[12] Thus, the trial court abused its discretion when it found Control in contempt
and when it imposed the $10,000 per diem fine because the court’s exercise of
its contempt power was contrary to well-established Indiana law. As a result,
we reverse the $10,407.80 fine assessed by the trial court to Control on
December 1, 2014.
[13] Reversed.
Baker, J., and Friedlander, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PL-547| June 4, 2015 Page 6 of 6