                                                                             Apr 15 2015, 9:48 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Dale Arnett                                                Alan S. Townsend
      Winchester, Indiana                                        Bradley M. Dick
                                                                 Bose McKinney & Evans LLP
                                                                 Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Norman Wagler, Nathan                                      April 15, 2015
      Wagler, and Janet Wagler,                                  Court of Appeals Case No.
                                                                 14A05-1406-PL-281
      Appellants-Defendants,
                                                                 Appeal from the Daviess Circuit
              v.                                                 Court

                                                                 The Honorable Mark R. McConnell,
      West Boggs Sewer District, Inc.,                           Special Judge
      Appellee-Plaintiff                                         Trial Court Case Nos. 14C01-0902-
                                                                 PL-62 and -64




      Crone, Judge.


                                               Case Summary
[1]   In February 2009, West Boggs Sewer District, Inc. (“West Boggs”), filed

      complaints against Norman Wagler and Nathan and Janet Wagler (collectively

      “the Waglers”), seeking to require them to connect their respective properties to

      its sewer system pursuant to Indiana Code Section 8-1-2-125. The statute

      Court of Appeals of Indiana | Opinion 14A05-1406-PL-281 | April 15, 2015                      Page 1 of 8
      provides that a not-for-profit public sewer utility, such as West Boggs, may

      require a property owner to connect to its sewer system if there is an available

      sanitary sewer within three hundred feet of the property line. Norman entered

      into an agreed judgment with West Boggs, pursuant to which he agreed to

      connect to the sewer system. The trial court issued a judgment against Nathan

      and Janet ordering them to connect to the sewer system. Norman filed a

      motion to set aside the agreed judgment, which the trial court denied, and he

      appealed. Nathan and Janet also appealed the judgment against them. The

      Waglers unsuccessfully litigated their appeals all the way to the U.S. Supreme

      Court, which denied certiorari in 2014.


[2]   The trial court issued two contempt orders against Norman and two contempt

      orders against Nathan and Janet based on their failure to comply with the

      judgments requiring them to connect to the sewer system. Norman appealed

      the second contempt order against him, and Nathan and Janet appealed the

      second contempt order against them. These appeals have been consolidated.


[3]   On appeal, the Waglers do not challenge the trial court’s findings of contempt.

      Instead, they claim that a 2012 amendment to Indiana Code Section 8-1-2-125

      exempts them from having to connect to the sewer system. We conclude that

      this is an impermissible collateral attack on the underlying judgments and

      therefore summarily affirm the contempt orders. West Boggs contends that it is

      entitled to recover appellate attorneys’ fees from the Waglers pursuant to

      Indiana Appellate Rule 66(E) because of the frivolousness and vexatiousness of



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      their appeal. We agree and therefore remand for a calculation of appellate

      attorneys’ fees to which West Boggs is entitled.


                                   Facts and Procedural History

                                          West Boggs v. Norman
[4]   In February 2009, West Boggs filed a complaint against Norman, seeking to

      require him to connect to its sewer system per Indiana Code Section 8-1-2-125.

      In March 2011, the trial court approved an agreed entry and judgment,

      pursuant to which Norman agreed to connect to the sewer system at his own

      cost within 90 to 120 days and to be held in contempt if he failed to do so. In

      April 2011, West Boggs filed a motion for rule to show cause, asking that

      Norman be held in contempt for failing to comply with the agreed entry and

      judgment. In May 2011, Norman filed a motion to set aside the agreed entry

      and judgment pursuant to Indiana Trial Rule 60(B).


[5]   In October 2011, the trial court issued an order holding Norman in contempt,

      finding that he “willfully and intentionally failed to comply” with the agreed

      entry and judgment and directing him to pay $300 in attorneys’ fees and a fine

      of $5 per day if he did not connect to the sewer system within sixty days.

      Appellants’ App. at 228. Norman did not appeal that order. The trial court

      also issued an order denying Norman’s Trial Rule 60(B) motion, which

      Norman appealed. This Court affirmed, Wagler v. W. Boggs Sewer Dist., Inc., 980

      N.E.2d 363 (Ind. Ct. App. 2012) (“Wagler I”), the Indiana Supreme Court




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      denied transfer, 989 N.E.2d 338 (Ind. 2013), and the U.S. Supreme Court

      denied certiorari, 134 S. Ct. 952 (2014).


[6]   In December 2012, West Boggs filed a second motion for rule to show cause,

      asking that Norman be held in contempt for failing to comply with the agreed

      entry and judgment. At a hearing on the motion, Norman admitted that he

      knew that he had been ordered to connect to the sewer system and that he was

      in contempt of court. In May 2014, the trial court issued a second order

      holding Norman in contempt, directing him to pay a fine of $4390 plus the $300

      in attorneys’ fees required by the previous order and an additional $400 in

      attorneys’ fees. The order also directed West Boggs to connect him to the sewer

      system within sixty days. Norman appealed and filed a motion to stay

      enforcement in the trial court, which was denied. Norman then filed a similar

      motion with this Court, which also was denied.


                                  West Boggs v. Nathan and Janet
[7]   In February 2009, West Boggs filed a complaint against Nathan and Janet,

      seeking to require them to connect to its sewer system per Indiana Code Section

      8-1-2-125. In October 2011, after a bench trial, the trial court issued an entry

      and judgment against Nathan and Janet, requiring them to connect to the sewer

      system at their own expense within 120 days and warning them that failure to

      comply could result in contempt or other sanctions. Nathan and Janet

      appealed the entry and judgment, and their appeal was consolidated with

      Norman’s. This Court affirmed, the Indiana Supreme Court denied transfer,

      and the U.S. Supreme Court denied certiorari.
      Court of Appeals of Indiana | Opinion 14A05-1406-PL-281 | April 15, 2015   Page 4 of 8
[8]    In May 2012, West Boggs filed a motion for rule to show cause, asking that

       Nathan and Janet be held in contempt for failing to comply with the entry and

       judgment. The contempt proceeding was delayed and ultimately stayed

       pending the appeal. In January 2014, the trial court issued an order holding

       Nathan and Janet in contempt, finding that they had “willfully disobeyed” the

       entry and judgment, and directing them to pay $300 in attorneys’ fees and a fine

       of $5 per day if they did not connect to the sewer system within sixty days.


[9]    In March 2014, West Boggs filed a motion to enforce order on rule to show

       cause. At a hearing on the motion, Nathan admitted that he did not follow the

       entry and judgment and was in contempt. In May 2014, the trial court issued a

       second order holding Nathan and Janet in contempt and directing them to pay

       a fine of $275 plus the $300 in attorneys’ fees required by the previous order and

       an additional $300 in attorneys’ fees. The order also directed West Boggs to

       connect them to the sewer system within sixty days. Nathan and Janet

       appealed and filed a motion to stay enforcement in the trial court, which was

       denied. They then filed a similar motion with this Court, which also was

       denied. Nathan and Janet’s appeal was consolidated with Norman’s appeal.


                                        Discussion and Decision
[10]   The Waglers are appealing from the trial court’s orders finding them in

       contempt, or willful disobedience, of the original judgments requiring them to

       connect to West Boggs’s sewer system. See Winslow v. Fifer, 969 N.E.2d 1087,

       1093 (Ind. Ct. App. 2012) (defining civil contempt as “the willful disobedience

       of any lawfully entered court order of which the offender has notice.”), trans.
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       denied (2013). But, as West Boggs points out, “one would not know this by

       reading their Appellants’ Brief. Instead, one would get the impression that this

       was a direct appeal of the Judgments.” Appellee’s Br. at 7-8. Indeed, rather

       than arguing that they did not willfully disobey the judgments, the Waglers

       claim that they should not be required to connect to the sewer system pursuant

       to the retroactive application of a 2012 amendment to Indiana Code Section 8-

       1-2-125.1 This is an impermissible collateral attack on the original judgments.


[11]   “Collateral attack of a previous order is allowed in a contempt proceeding only

       if the trial court lacked subject matter or personal jurisdiction to enter the

       order.” Martin v. Martin, 771 N.E.2d 650, 653 (Ind. Ct. App. 2002) (citation

       omitted). The Waglers make no such claim. “Even an erroneous order must be

       obeyed unless and until reversed on appeal. A party’s remedy for an erroneous

       order is appeal; disobedience of the order is contempt.” Id. (citation omitted).

       The Waglers unsuccessfully appealed the original judgments all the way to the

       U.S. Supreme Court. The only procedural means for asserting their

       retroactivity argument, which they did not raise in Wagler I, would be a motion

       for relief from the original judgments pursuant to Indiana Trial Rule 60(B),




       1
         See Ind. Code § 8-1-2-125(k) (“A not-for-profit public sewer utility may not require a property owner to
       connect to the not-for-profit public sewer utility's sewer system if: (1) the property is located on at least ten
       (10) acres; (2) the owner can demonstrate the availability of at least two (2) areas on the property for the
       collection and treatment of sewage that will protect human health and the environment; (3) the waste stream
       from the property is limited to domestic sewage from a residence or business; (4) the system used to collect
       and treat the domestic sewage has a maximum design flow of seven hundred fifty (750) gallons per day; and
       (5) the owner, at the owner’s expense, obtains and provides to the district a certification from the local health
       department or the department's designee that the system is not failing.”).

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       which they did not file. That argument is meritless because Article 1, Section

       24 of the Indiana Constitution provides that no law “impairing the obligation of

       contracts, shall ever be passed.” It is well settled that a judgment is a contract

       for purposes of this provision, Heath v. Fennig, 219 Ind. 629, 632, 40 N.E.2d

       329, 331 (1942), and therefore the 2012 addition of subsection (k) to Indiana

       Code Section 8-1-2-125 cannot impair the Waglers’ obligations under the 2011

       original judgments to connect to West Boggs’s sewer system. Because the

       Waglers do not challenge the legal basis for the contempt orders, we summarily

       affirm them.


[12]   As a final matter, West Boggs asserts that it is entitled to appellate attorneys’

       fees under Indiana Appellate Rule 66(E), which provides, “The Court may

       assess damages if an appeal, petition, or motion, or response, is frivolous or in

       bad faith. Damages shall be in the Court’s discretion and may include

       attorneys’ fees. The Court shall remand the case for execution.” “Our

       discretion to award attorney fees under Indiana Appellate Rule 66(E) is limited

       … to instances when an appeal is permeated with meritlessness, bad faith,

       frivolity, harassment, vexatiousness, or purpose of delay.” Thacker v. Wentzel,

       797 N.E.2d 342, 346 (Ind. Ct. App. 2003). “[W]hile Indiana Appellate Rule

       66(E) provides this Court with discretionary authority to award damages on

       appeal, we must use extreme restraint when exercising this power because of

       the potential chilling effect upon the exercise of the right to appeal.” Id.


[13]   The Waglers’ appeal is frivolous, because, as West Boggs observes, they “do

       not even address the Contempt Orders” and “simply seek to re-litigate the

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       Judgments,” which they may not do. Appellee’s Br. at 28. Moreover, we agree

       that this appeal “appears to be part of a strategy to simply draw this matter out

       with the hope that West Boggs will quit.” Id. at 28-29. This strategy is the very

       definition of vexatiousness and delay. Consequently, we conclude that West

       Boggs is entitled to recover appellate attorneys’ fees from the Waglers under

       Appellate Rule 66(E), and we remand for a calculation of those fees.


[14]   Affirmed and remanded.


       Friedlander, J., and Kirsch, J., concur.




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