      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                               Jun 03 2015, 9:57 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                                 ATTORNEYS FOR APPELLEE
      P. Adam Davis                                          Russell L. Brown
      Davis & Sarbinoff, LLP                                 Frank D. Otte
      Indianapolis, Indiana                                  Sean A. Brown
                                                             Clark, Quinn, Moses, Scott & Grahn, LLP
                                                             Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Gregory J. Mills,                                          June 3, 2015

      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 49A02-1403-PL-212

              v.                                                 Appeal from the Marion Superior
                                                                 Court
                                                                 The Honorable Michael D. Keele,
      Dean Kimbley,                                              Judge
      Appellee-Defendant                                         Trial Court Cause No. 49D07-0610-
                                                                 PL-43445




      Bradford, Judge.



                                            Case Summary
[1]   Soon after Appellant-Plaintiff Gregory Mills moved in next-door to Appellee-

      Defendant Dean Kimbley in 2004, Mills began taking issue with Kimbley’s


      Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015             Page 1 of 28
      activities, which included the alleged playing of excessively loud music. In

      2006, Mills brought suit against Kimbley, alleging trespass, nuisance, and

      intentional infliction of emotional distress. After the case went up to the

      Indiana Supreme Court and back, in September of 2010 the parties entered into

      an agreed judgment (“the Order”). The Order included provisions regarding

      the volume at which Kimbley was allowed to play music on his property and

      Mills’s recourse in the event of violations.


[2]   In December of 2010, Mills filed a motion for rule to show cause, contempt

      citation, and damages (“First Contempt Motion”), in which he alleged several

      violations of the anti-noise and -harassment provisions of the Order. The

      allegations of harassment involved coughing, yelling, and/or staring by persons

      on Kimbley’s property directed at those on Mills’s property. The trial court

      denied Mills’s motion, in an order ruling that he failed to establish violations

      (“First Contempt Order”).


[3]   In late 2011, Mills filed another motion for rule to show cause, contempt

      citation, and damages (“Second Contempt Motion”), in which he ultimately

      alleged approximately 900 additional violations of the Order by Kimbley. Most

      of the allegations in the Second Contempt Motion involved harassment by

      coughing, yelling, and/or staring, and Kimbley sought a limine motion

      preventing Mills from presenting evidence of them on res judicata grounds. The

      trial court granted Kimbley’s motion for limine order, leaving just eighteen

      allegations of noise violations. Meanwhile, Kimbley had also filed a motion for



      Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 2 of 28
      contempt citation (“the Kimbley Motion”), alleging that Mills had

      impermissibly videotaped activity on Kimbley’s property.


[4]   After a hearing, the trial court issued its order (“Second Contempt Order”) on

      the Second Contempt and Kimbley Contempt Motions, rejecting Mills’s

      allegations, finding some of Kimbley’s to have merit, and awarding Kimbley

      attorney’s fees. Mills appeals, arguing that the trial court improperly granted

      Kimbley’s request for a limine order, clearly erred in denying the Second

      Contempt Motion, and erred in awarding Kimbley attorney’s fees. Finding no

      error, we affirm.



                            Facts and Procedural History
[5]   For background, we refer to the opinion we issued in a previous appeal in this

      case:


              Mills and Kimbley are next-door neighbors. Mills lives at 310
              West Edgewood Avenue in Indianapolis, where he has lived
              since March of 2004. Kimbley lives at 302 West Edgewood
              Avenue, which is the property adjacent to Mills’s property on the
              east side, where he has lived since 1984.
              Within approximately two months of his move to 310 West
              Edgewood Avenue, Mills began keeping a journal of what in his
              view were Kimbley’s disruptive activities. This journal,
              subsequently submitted as designated evidence in the instant
              action, covers Kimbley’s activities from May 21, 2004 through
              September 11, 2006, and is eighty-three pages long. On April 25,
              2005, Mills began videotaping Kimbley’s and his guests’
              activities without their permission. Due to Mills’s videotaping


      Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 3 of 28
              activities, Kimbley claims to have been deprived the full use and
              enjoyment of certain portions of his property.
              On May 8, 2006, Mills sent Kimbley a letter, in which he
              demanded that Kimbley not play loud music, permit loud and/or
              foul language, set off the house alarm, move his trash to Mills’s
              property, enter any part of his property for any reason, contact
              him or his guests, nor tamper with his fence. In addition, Mills
              demanded that within seven days of receipt of the letter, Kimbley
              was to trim certain trees along the fence line and keep the
              property line clear of any obstructions such as “cinder blocks,
              mulch, and growth barriers.” App. p. 40. Mills also demanded
              that within seven days Kimbley remove his sprinkler system,
              which Mills claimed was on his property, and repair a bare area
              of his yard, which Mills believed was caused by Kimbley’s mulch
              pile. An inspection report issued by the City of Indianapolis
              found no violation in the placement of the sprinkler system.
              Following Kimbley’s receipt of this letter, the parties agreed to
              participate in a voluntary mediation session with the Marion
              County Prosecutor’s Office. At that session the parties reached
              an agreement providing, inter alia, that Mills would trim the trees
              and that Kimbley’s music was not to be so loud as to be heard in
              Mills’s home.
              In September of 2006, Mills listed his residence for sale through
              broker Century 21 with a list price of $139,900. Kimbley,
              accompanied by his son and a friend, toured Mills’s residence
              with a real estate agent when Mills was not present.
      Mills v. Kimbley, 909 N.E.2d 1068, 1072-73 (Ind. Ct. App. 2009) (footnote

      omitted), trans. granted and vacated, 932 N.E.2d 1230 (Ind. 2010).


[6]   On October 26, 2006, Mills filed suit against Kimbley, alleging trespass,

      nuisance, and intentional infliction of emotional distress. On December 3,

      2008, the trial court granted summary judgment in favor of Kimbley on all

      claims. When Mills appealed, we affirmed in part, reversed in part, and

      Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 4 of 28
      remanded with instructions. Id. at 1080. The Indiana Supreme Court granted

      transfer, vacated Mills’s appeal on the basis that the trial court’s judgment was

      not final, and remanded to the trial court for the determination of damages.


[7]   Rather than proceed to a hearing on damages, the parties entered into the

      Order, filed on September 15, 2010, and which provides, in part, as follows:

              Plaintiff, Gregory J. Mills, and Defendant, Dean Kimbley,
              individually, and by counsel, submit the following as an Agreed
              Judgment to fully and completely dispose of the above captioned
              litigation. In resolving this matter, the parties hereby agree as
              follows:
              1.      This matter is fully and completely resolved by this Agreed
                      Judgment. As part of this Agreed Judgment neither party
                      shall be determined to be the prevailing party in this
                      litigation. However, except as discussed herein, the claims
                      and actions complained of in this matter shall be
                      completely and fully disposed of by this Agreed Judgment.
              2.      The Plaintiff hereby agrees that neither he, nor any
                      resident or visitor to his home shall contact law
                      enforcement authorities for any activities occurring on
                      Defendant’s property relating to noise occurring on
                      Defendant’s property or for any other action was included
                      in the litigation herein.
              3.      Defendant shall be entitled to use his property in
                      accordance with all local ordinances and state statute[s].
                      Specifically, Defendant shall be permitted to play music
                      and/or create noise outside between the hours of 7:00
                      A.M. and 10:00 P.M. as permitted by Indianapolis Marion
                      County Code, Section 391-302(c)(2) [(“the Indianapolis
                      Noise Ordinance”)]. Should Plaintiff feel at any time
                      between the hours of 7:00 A.M. and 10;00 P.M. that the
                      level of music and/or noise coming from Defendant’ s

      Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 5 of 28
                property is at an unreasonable level inside Plaintiff’s
                home, Plaintiff shall politely communicate this to the
                Defendant via text message or phone call at the number
                provided to Plaintiff by Defendant. If the Defendant fails
                to reduce the level of the music and/or noise within thirty
                (30) minutes of such a request so it is no longer audible
                inside Plaintiff’s home, Plaintiff shall be entitled to capture
                the level of sound via any reasonable means including, but
                not limited to, video recording for purposes of showing
                that Defendant is in breach of this Agreed Judgment.
        4.      If Defendant is playing music and/or creating noise
                outside his home which is audible on Plaintiff’s property
                (include[ing] inside and outside of Pl[ai]ntiff’s home)
                between the hours of 10:00 P.M. and 7:00 A.M. or is
                playing music and/or creating noise from inside any
                structures located on his property which is audible from
                Plaintiff’s property (including in side and outside of
                Plaintiff’s home), Plaintiff shall politely communicate this
                fact to Defendant at the phone numbers provided to
                Plaintiff by Defendant. If the Defendant fails to reduce the
                level of the music within thirty (30) minutes of such a
                request so that it is no longer audible within Plaintiff’s
                property, Plaintiff shall be entitled to capture the level of
                sound via any reasonable means, including, but not
                limited to, video recording, for purposes of showing that
                Defendant is in breach of this Agreed Judgment.
        5.      With the exceptions of the situations included in
                Paragraph 3 and 4 herein, Plaintiff shall not use a
                videotape or camera to deliberately capture the activities of
                any person occurring completely on the Defendant’s
                property.
        6.      There shall be no harassment between Plaintiff and
                Defendant or guests/visitors of Plaintiff and Defendant.
                Should any activity occur which is perceived as
                harassment, the harassed party shall notify the opposing
                party of such activity via phone cell or text message and
Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 6 of 28
                      the opposing party shall take any and all reasonable steps
                      to ensure such activity ceases.
                                           *       *        *       *
              9.      To the extent one party believes there has been a breach of
                      this agreed judgment, the agreed upon judicial remedy
                      shall be to bring a contempt motion in the
                      above-referenced litigation against the opposing party
                      based on the terms and conditions of this agreed judgment.
              10.     Given that the damages for such a breach shall be difficult
                      to calculate, the parties hereby agree that the prevailing
                      party in any contempt action occurring as a result of an
                      alleged breach of this Agreed Judgment shall be entitled to
                      liquidated damages in the amount of five hundred dollars
                      ($500.00) for each violation of Agreed Order.
                      Additionally, the prevailing party shall be entitled to any
                      legal fees incurred as a result of the contempt action.
      Appellant’s App. pp. 47-48. Paragraphs 3 and 4 of the Order shall henceforth

      be referred to as “the Daytime Noise Clause” and “the Nighttime Noise

      Clause,” respectively.


[8]   Matters between Mills and Kimbley did not stay resolved for long. On

      December 21, 2010, Mills filed the First Contempt Motion. In the First

      Contempt Motion, Mills alleged thirty-four violations of the Order, starting

      three days after entry of the Order. The allegations in the First Contempt

      Motion included eleven allegations of violations of noise provisions, twenty-

      two allegations of harassment based mostly on “coughing fits” and “staring”

      directed at Mills and his guests, and one allegation that Kimbley had urinated

      on Mills’s fence. Appellant’s App. pp. 35-42.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 7 of 28
[9]    The trial court held a hearing on the First Contempt Motion, at which, inter

       alia, it apparently heard evidence related to coughing and/or yelling by

       Kimbley (or others on Kimbley’s property) which Mills considered to be

       harassing. Mills gave Kimbley notice regarding the activity, but the activity

       continued. Kimbley argued that he did not consider the activity in question to

       constitute harassment. After the hearing, the trial court denied Mills’s First

       Contempt Motion, in the First Contempt Order, entered on April 14, 2011.

       The First Contempt Order provides, in relevant part, as follows:

               The Court finds that the Plaintiff, Gregory J. Mills, has failed to
               meet his burden of showing that the Defendant, Dean Kimbley,
               has breached the terms of [the Order] filed herein on September
               15, 2010; specifically, Plaintiff failed to prove violations of the
               Daytime Noise Clause, Nighttime Noise Clause and the
               Harassment Clause as alleged in Plaintiff’s [First Contempt
               Motion].
       Appellant’s App. p. 51.


[10]   Mills appealed the First Contempt Order, alleging that sufficient evidence was

       presented to prove the allegations in the First Contempt Motion. On February

       10, 2012, we issued our memorandum decision in the appeal, concluding that

       Mills failed to establish that the trial court erred in denying his First Motion for

       Contempt and that Kimbley was entitled to attorney’s fees for defending the

       appeal. Mills v. Kimbley, Cause No. 49A04-1105-CT-236 at *4-5 (Ind. Ct. App.

       Feb. 10, 2012).


[11]   Meanwhile, on November 16, 2011, Mills had filed the Second Contempt

       Motion. On November 21, Kimbley file a response to the Second Contempt
       Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 8 of 28
       Motion, in which he sought a limine order that principles of res judicata

       prevented Mills from proceeding with claimed Order violations based on

       coughing and/or staring. Mills amended the Second Contempt Motion on

       January 15, 2013. In the Second Contempt Motion, Mills alleged additional

       violations of the Order’s noise and harassment clauses between October 24,

       2010, and November 30, 2012, and attached to the motion a forty-seven-page

       list detailing over 900 allegations of violations of the terms of the Order,

       approximately 890 of which involved coughing and/or staring.


[12]   On February 28, 2013, and after a hearing, the trial court granted Kimbley’s

       request for a limine order related to allegation of coughing and/or staring, ruling

       that “[h]ere the relief requested by Mills in his Second Contempt Motion as it

       relates to harassment by coughing, yelling, etc. cannot be granted because the

       bringing of said action is barred by the theory of res judicata, specifically by both

       claim preclusion and issue preclusion.” Appellant’s App. p. 24.


[13]   On March 4, 2013, Kimbley filed the Kimbley Contempt Motion, in which he

       alleged that Mills had violated the Order’s provisions on twenty-nine occasions

       by videotaping activity on Kimbley’s property.


[14]   Following three evidentiary hearings, the trial court ruled on the Second

       Contempt Motion and the Kimbley Contempt Motion on January 3, 2014. The

       Second Contempt Order reads, in part, as follows:


                  FINDINGS OF FACTS, CONCLUSIONS OF LAW AND
                                     ORDER


       Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 9 of 28
                This cause having come before the Court for hearing on a
        Plaintiff’s Second Verified Motion for Rule to Show Cause,
        Contempt Citation and Damages (as Amended) (hereinafter the
        “Second Contempt Motion”) and the Defendant’s Motion for
        Rule to Show Cause, Contempt Citation and Damages
        (“Defendant’s Contempt Motion”). This Court, on December
        12, 2012, entered an Order establishing preliminary matters to be
        considered on the Second Contempt Motion and held a hearing
        on such preliminary matters on January 28, 2013 and ruled on
        such preliminary matters on February 28, 2013. This Court held
        evidentiary hearings on March 20, 2013, May 20, 2013, June 20,
        2013, and November 6, 2013, (collectively hereinafter the
        “Second Evidentiary Hearings”) in support of and in defense of
        both the Second Contempt Motion and the Defendant’s
        Contempt Motion. The Court having considered all documents
        filed, evidence properly presented, pleadings filed by the parties,
        and having considered all parties’ arguments, now finds and
        orders as follows:
                 FINDINGS OF FACT REGARDING SECOND
                          CONTEMPT MOTION
               1.     During the Second Evidentiary Hearings, Plaintiff
        Gregory Mills (“Mills”) testified that sometime after the Court’s
        April 14, 2011 Order and before filing the Second Contempt
        Motion he purchased and utilized a decibel meter to attempt to
        quantify the level of sound coming from Defendant Dean
        Kimbley’s (“Kimbley”) property during alleged violations of the
        Daytime Noise Clause or Nighttime Noise Clause. Mills testified
        that he had no special training for utilization of the decibel meter
        and that the decibel meter had never been professionally
        calibrated. Mills further testified that no one had told him, nor
        had he independently determined what decibel level would be
        considered a violation of [the Indianapolis Noise Ordinance].
              2.     Mills presented video evidence and testimony
        regarding fourteen (14) alleged violations of the Daytime Noise
        Clause and four (4) alleged violations of the Nighttime Noise
        Clause. No other witness testimony was provided as to the
Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 10 of 28
        alleged breach of the Daytime Noise Clause or Nighttime Noise
        clause on these eighteen (18) occasions.
                3.      The noise levels shown on the video have
        substantial variations depending on the location from which the
        video was shot, the camera which captured the video and the
        amount and type of other ambient noise present (including but
        not limited to barking dogs, exterior heat pumps/air conditioning
        units, traffic, yard equipment or other typical daytime and
        nighttime residential neighborhood noises). Mills repeatedly
        testified that he believed the video evidence did not accurately
        capture the level of noise emitting from Kimbley’s property.
               4.    Mills introduced no evidence, expert or otherwise,
        that Kimbley’ s use of his property on the fourteen (14) dates of
        the alleged Daytime Noise Clause violations was in violation of
        [the Indianapolis Noise Ordinance].
               5.    The video evidence of the Nighttime Noise Clause
        violations occurred prior to the utilization of the decibel meter by
        Mills, and such video evidence containing substantial variations
        and ambient noise and his own testimony were the only evidence
        provided by Mills.
              6.     On cross-examination Mills indicated that he did
        not always step outside to verify that the noise captured in the
        video evidence was captured from Kimbley’s property at 302 W.
        Edgewood.
                7.     Kimbley testified that he continued to utilize a
        stereo outside on his property that had been present on his
        property on September 19, 2010, when IMPD Officer Shanan
        Abney responded to a police run at Kimbley’s property. Kimbley
        testified that during Abney’s 2010 visit a mark was placed on the
        radio which the officer and Kimbley judged to be not an
        unreasonable level. During testimony Abney indicated that she
        did not place a mark on the stereo during her visit and did not
        recall seeing the stereo during the September 2010 visit to the
        property. Abney’s recollection was varied as to whether or not
        music was playing during her visit to the property, though after

Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 11 of 28
        being read contents of her case report for the visit which
        explicitly states that she “could not hear the radio until I got to
        the very back of the yard” and that “(i)n my opinion the radio
        was not at an unreasonable level and I could not here (sic) Mr.
        Dean’s radio from my squad car in his driveway” admitted the
        recollection closer to the event was more likely accurate than
        testimony more than three years later. Abney specifically
        testified that she did not have to ask Kimbley to reduce the level
        of the volume of the stereo during her September 2010 visit. No
        evidence was introduced that Kimbley decreased the level of
        music in anticipation of Abney’s arrival on the property or that it
        was increased following her departure.
              8.     Kimbley consistently testified that his reaction to a
        text message sent from Mills alleging a violation of the Daytime
        Noise Violation was to confirm that the stereo was not being
        operated above the mark placed on the stereo during/following
        the September 2010 visit of Abney. If such confirmation was
        made, Kimbley testified that no change in the volume of the
        music was made.
               9.     Abney did not interview Mills during her September
        2010 visit to Kimbley’s property and did not visit Mills’ property
        during such a visit. Abney has never interviewed Mills regarding
        this case and had no information regarding Mills’ medical
        history.
             FINDINGS OF FACT REGARDING DEFENDANT’S
                        CONTEMPT MOTION
                10.      Paragraph 5 of the Agreed Judgment provides that:
                “With the exceptions of the situations included in
                Paragraph 3 [Daytime Noise] and 4 [Nighttime
                Noise] herein, Plaintiff shall not use a videotape or
                camera to deliberately capture the activities
                occurring completely on the Defendant’s Property.’’
              11. During the Second Evidentiary Hearings Kimbley
        played excerpts of DVD’s provided to his counsel by Mills


Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 12 of 28
        showing twenty-nine (29) incidents in which videotaping
        occurred of Kimbley’s Property.
               12. Kimbley testified and video evidence showed that at
        least part of the videotape entries for the twenty-nine (29)
        incidents include events occurring completely on Kimbley’s
        property, including events like individuals mowing his yard,
        doing various home maintenance tasks, and individuals coming
        and leaving his property.
               13. Mills testified that the twenty-nine (29) video clips
        were taken either utilizing the Handheld Camera or the Security
        Cameras. Mills further testified that he had set up the Security
        Cameras to operate, including aiming them in the direction he
        desired and controlling when the taping was to occur. Mills
        further testified that he could position the Security Cameras in
        such a way as to capture events on his property and not
        videotape onto Kimbley’s property.
              14. Five (5) of the twenty-nine (29) alleged violations
        appear to have involved Mills using “videotape … to deliberately
        capture the activities of any person occurring completely on
        Defendant’s property.” See Agreed Judgment ¶ 5.
                15. The remaining twenty-four (24) alleged violations
        do not appear to involve Mills deliberately capturing the
        activities of any person occurring completely on Defendant’s
        property as said violations appear either not to involve activities
        of a person and/or activities of a person occurring completely on
        Kimbley’s property. Furthermore, many of the remaining
        alleged violations do not appear to be video by Mills
        “deliberately” for the purpose of capturing said activities as said
        video was 24-hour surveillance video used to secure Mills’
        property, not to capture activities occurring completely on
        Kimbley’s property.
           CONCLUSIONS OF LAW AND ORDER REGARDING
                  SECOND CONTEMPT MOTION
              1.     A civil contempt proceeding is not primarily
        intended to “punish the contemnor but to coerce action for the
Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 13 of 28
        benefit of the aggrieved party,” here compliance with the Agreed
        Judgment. Bartlemay v. Witt, 892 N.E.2d 219, 228 (Ind. Ct. App.
        2008), quoting Marks v. Tolliver, 839 N.E.2d 703, 707 (Ind. Ct.
        App. 2005).
               2.      The parties in this matter have entered into an
        Agreed Judgment which was approved by this Court. In
        Indiana, judgments of this type are interpreted in the same
        manner as contracts between the parties. Firestone v. American
        Premier Underwriters, Inc., 891 N.E.2d 151, 154 (Ind. Ct. App.
        2008), citing Tri-Professional Realty, Inc. v. Hillenburg, 669 N.E.2d
        1064, 1068 (Ind. Ct. App. 1996). See also, unpublished opinion of
        the Indiana Court of Appeals in case 49A04-1105-CT-236
        (“Court of Appeals Affirmation”), p.6. When doing so the court
        attempts to read all provisions of the judgment to make all
        provisions effective. Id. The court should attempt to determine
        the intent of the parties at the time the contract was made by
        examining the language used to express respective rights and
        duties. GKN Co. v. Starnes Trucking, Inc., 798 N.E.2d 548, 552
        (Ind. Ct. App. 2003) citing Exide Corp. v. Millwright Riggers, Inc.,
        727 N.E.2d 473, 478 (Ind. Ct. App. 2000). Words are to be given
        their usual and common meaning. Court of Appeals
        Affirmation, p.6. The entire contract must be read together and
        given meaning, and words, phrases, sentences, paragraphs and
        sections cannot be read alone. GKN Co., 798 N.E.2d at 552.
               3.      With regards to the fourteen (14) alleged violations
        of the Daytime Noise Clause, the primary dispute between the
        parties relating to the alleged violations of the Daytime Noise
        Clause is whether the Agreed Judgment requires any deference to
        [the Indianapolis Noise Ordinance] or if Mills’ subjective
        reasonableness is the only test for a violation. See Court of
        Appeals Affirmation, fn. 5, p. 8.
                4.       The complete Daytime Noise Clause reads:
                Defendant [Kimbley] shall be entitled to use his
                property in accordance with all local ordinances and
                state statute. Specifically, Defendant shall be

Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 14 of 28
                permitted to play music and/or create noise outside
                between the hours of 7:00 A.M. and 10:00 P.M. as
                permitted by [the Indianapolis Noise Ordinance].
                Should Plaintiff [Mills] feel at any time between the
                hours of 7:00 A.M. and 10:00 P.M. that the level of
                music and/or noise coming from Defendant’s
                property is at an unreasonable level inside Plaintiff’s
                home, Plaintiff shall politely communicate this to
                the Defendant via text message or phone call at the
                numbers provided to Plaintiff by Defendant. If
                Defendant fails to reduce the level of the music
                and/or noise within thirty (30) minutes of such a
                request so it is no longer audible inside Plaintiff’s
                home, Plaintiff shall be entitled to capture the level
                of sound via any reasonable means, including, but
                not limited to, video recording for purposes of
                showing that Defendant is in breach of this Agreed
                Judgment.
                5.    Mills argued during the Second Evidentiary
        Hearings the only relevant test to determine a violation of the []
        Daytime Noise Clause is whether Mills himself determined the
        noise from Kimbley’ s property to be unreasonable. As discussed
        in the Court of Appeals Affirmation, such a reading ignores the
        first two sentences of the Daytime Noise Clause and does not
        give a complete reading to the provisions of the Daytime Noise
        Clause as required under Indiana law.
               6.     Mills presented no testimony during his case in
        chief that on any of the fourteen (14) alleged violations of the
        Daytime Noise Clause that Kimbley’s use on these days was in
        violation of [the Indianapolis Noise Ordinance] or other
        applicable laws or regulations. The absence of such evidence
        prevents Mills’ recovery against Kimbley for a violation of the
        Daytime Noise Clause.
              7.    Mills’ evidence regarding violations of the
        Nighttime Noise Clause failed to prove that the noise level was
        audible on Mills’ property and failed to prove that the
Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 15 of 28
        noise/music which was being generated was being created from
        Kimbley’s property.
               IT IS THEREFORE ORDERED AND DECREED that
        Mills’ request for an order finding Kimbley to be in violation of
        the Agreed Judgment’s Daytime Noise Clause and Nighttime
        Noise Clause for the incidents included in the Second Contempt
        Motion is hereby denied and Mills shall take nothing from the
        Second Contempt Motion’s request for an award of damages and
        attorney’s fees as it relates to such claims.
           CONCLUSIONS OF LAW AND ORDER REGARDING
                DEFENDANT’S CONTEMPT MOTION
                1.     Paragraph 5 of the Agreed Judgment specifically
        prohibits Mills from videotaping to “deliberately capture the
        activities of any person occurring completely on the Defendant’s
        property” unless the videotaping is occurring to capture evidence
        of a violation of the Daytime or Nighttime Noise Clause of the
        Agreed Judgment.
               2.     A proper reading of the Agreed Judgment therefore
        bars Mills from videotaping activities on Kimbley’s property for
        any other purpose not related to attempting to prove a violation
        of the Daytime Noise Clause or Nighttime Noise Clause.
               3.    The video evidence provided by Kimbley during the
        Evidentiary Hearings shows five (5) incidents wherein Mills
        violated Paragraph 5 of the Agreed Judgment.
              IT IS THEREFORE ORDERED AND DECREED that
        Kimbley’s request for an order finding Mills to be in violation of
        Paragraph 5 of the Agreed Judgment for five (5) incidents
        included in the Defendant’s Contempt Motion is hereby granted
        and Mills is hereby determined to be in contempt of Paragraph of
        the Agreed Judgment.
           CONCLUSIONS OF LAW - LIQUIDATED DAMAGES
              1.      Paragraph 10 of the Agreed Judgment provides that
        a prevailing party on a contempt action shall be entitled to


Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 16 of 28
        liquidated damages in the amount of five hundred dollars
        ($500.00) for each violation of the Agreed Judgment
               2.    This Court has determined that Kimbley is the
        prevailing party as it relates to five (5) violations of Paragraph 5
        of the Agreed Judgment as alleged in the Defendant’s Contempt
        Motion.
               IT IS THEREFORE ORDERED AND DECREED that
        Mills is hereby ordered to pay Kimbley an amount of $2,500.00
        as liquidated damages. This Order shall be without relief from
        valuation and appraisement laws and shall be reduced to a
        Judgment against Plaintiff in favor of Defendant and be entered
        by the Clerk of the Courts into the Roll of Judgments.
                    CONCLUSIONS OF LAW - ATTORNEY’S FEES
                1.    Paragraph 10 of the Agreed Judgment provides that
        the prevailing party of an action shall be entitled to any and all
        legal fees incurred as a result of the contempt action.
               2.     Kimbley has been determined by this Court to be
        the prevailing party on the Second Contempt Motion and the
        Defendant’s Contempt Motion.
              3.     Kimbley’s counsel has provided an affidavit for fees
        and associated costs related to the defense of the Second
        Contempt Motion and prosecution of the Defendant’s Contempt
        Motion for fees and costs in the amount of Sixteen Thousand
        Nine Hundred Thirty Six and 55/100 Dollars ($16,936.55).
               4.     This Court finds such amounts to be reasonable in
        light of the amount of work related to the matters.
               IT IS THEREFORE ORDERED AND DECREED that
        Plaintiff shall pay to Defendant an award in the amount of
        Sixteen Thousand Nine Hundred Thirty Six and 55/10 Dollars
        ($16,936.55). This Order shall be without relief from valuation
        and appraisement laws and shall be reduced to a Judgment
        against Plaintiff in favor of Defendant and be entered by the
        Clerk of the Courts into the Roll of Judgments.
Appellant’s App. pp. 27-34.
Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 17 of 28
[15]   Mills contends that the trial court erred (1) in concluding that his allegations of

       harassment based on coughing and staring were barred by res judicata, (2) in

       rejecting his allegations of noise violations, and (3) in awarding Kimbley

       attorney’s fees.


                                  Discussion and Decision
                                             I. Res Judicata
[16]   Mills contends that the trial court’s limine order regarding his allegations of

       harassment based on coughing and/or staring was in error. Both parties agree

       that the limine order is to be reviewed as a judgment on the pleadings pursuant

       to Indiana Trial Rule 12(C).


               We review de novo a trial court’s ruling on a Rule 12(C) motion
               for judgment on the pleadings. Murray v. City of Lawrenceburg,
               925 N.E.2d 728, 731 (Ind. 2010). We accept as true the well-
               pleaded material facts alleged in the complaint, and base our
               ruling solely on the pleadings. Id. (citing Noblesville Redevelopment
               Comm’n v. Noblesville Assocs. Ltd. P’ship, 674 N.E.2d 558, 562 (Ind.
               1996)). A Rule 12(C) motion for judgment on the pleadings is to
               be granted “only where it is clear from the face of the complaint
               that under no circumstances could relief be granted.” Id.
               (quoting Forte v. Connerwood Healthcare, Inc., 745 N.E.2d 796, 801
               (Ind. 2001) (quoting Culver-Union Twp. Ambulance Serv. v.
               Steindler, 629 N.E.2d 1231, 1235 (Ind. 1994))).
               When reviewing a Rule 12(C) motion, we may look only at the
               pleadings and any facts of which we may take judicial notice,
               with all well-pleaded material facts alleged in the complaint taken
               as admitted. Waldrip v. Waldrip, 976 N.E.2d 102, 110 (Ind. Ct.
               App. 2012).


       Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 18 of 28
       Consol. Ins. Co. v. Nat’l Water Servs., LLC, 994 N.E.2d 1192, 1196 (Ind. Ct. App.

       2013), trans. denied.


[17]   The basis for the trial court’s limine order was that the issue of coughing and/or

       staring as harassment was res judicata, having been resolved in the First

       Contempt Order.

               Res judicata serves to prevent repetitious litigation of disputes
               which are essentially the same. MicroVote General Corp. v. Ind.
               Election Comm’n, 924 N.E.2d 184, 191 (Ind. Ct. App. 2010). The
               doctrine of res judicata consists of two distinct components:
               claim preclusion and issue preclusion. Dawson v. Estate of Ott, 796
               N.E.2d 1190, 1195 (Ind. Ct. App. 2003). Claim preclusion
               applies when a final judgment on the merits has been rendered in
               a prior action, and it acts to bar a subsequent action on the same
               claim between the same parties. MicroVote, 924 N.E.2d at 191.
               Claim preclusion applies when the following four factors are
               satisfied:
                       1) the former judgment must have been rendered by
                       a court of competent jurisdiction; 2) the former
                       judgment must have been rendered on the merits; 3)
                       the matter now in issue was, or could have been,
                       determined in the prior action; and 4) the
                       controversy adjudicated in the former action must
                       have been between the parties to the present suit or
                       their privies.
               Id.
       Hilliard v. Jacobs, 957 N.E.2d 1043, 1046 (Ind. Ct. App. 2011), trans. denied.


[18]   Mills contends that the former judgment regarding coughing, yelling, and/or

       staring was not rendered on the merits such that application of res judicata is

       appropriate. Specifically, Mills argues that the previous disposition of the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 19 of 28
       coughing and/or staring claim in the First Contempt Order was merely a

       determination that the evidence supporting his previous claims was insufficient,

       not that coughing, yelling, and/or staring are not inherently harassing.

       Kimbley counters that, considering the evidence heard in the first contempt

       proceeding, the trial court’s determination was, in fact, a determination that the

       activity cited by Mills is not inherently harassing. In the end, these distinctions

       make no difference if the allegations brought by Mills in the Second Contempt

       Motion are essentially of the same character as the allegations rejected by the

       trial court in the First Contempt Order. With this in mind, we agree with

       Kimbley.


[19]   The harassment clause of the Order provided that, in the event one party found

       behavior to be harassing, that party was to notify the other party, and the other

       party was to take any and all “reasonable” steps to cease the activity. The trial

       court heard evidence that (1) Kimbley or others on Kimbley’s property coughed

       and/or yelled in Mills’s or Mills’s guests’ hearing and/or stared at Mills or his

       guests, (2) Mills notified Kimbley that he found the activity to be harassing, and

       (3) Kimbley did not stop. Yet, the trial court found in the First Contempt Order

       that Mills failed to establish harassment. The only logical basis for this ruling is

       that the trial court concluded that the activity complained of, i.e., coughing,

       yelling, and/or staring, did not rise to the level of harassment. Indeed, the trial

       court confirmed this during the hearing on the limine motion, stating, “And

       that’s in essence … that [coughing could never be a violation of the Order] is in

       essence what this court found [in the First Contempt Order].” Tr. pp. 36-37.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 20 of 28
[20]   Review of Mills’s specific allegations of harassment reveal them to be

       equivalent in nature to the allegations rejected in the First Contempt Motion.

       Moreover, although Mills argues on appeal that he was deprived of his

       opportunity to present evidence showing that Kimbley’s acts of alleged

       harassment had become more extreme, we have no way of knowing this,

       because he made no offer of proof to that effect. “[F]ailure to make an offer of

       proof results in waiver of the evidentiary issue.” Bedree v. Bedree, 747 N.E.2d

       1192, 1196 (Ind. Ct. App. 2001), trans. denied. Consequently, we conclude that

       the trial court did not err in concluding that Mills’s claims related to alleged

       harassment were res judicata. See Kielczewski v. Rochwalik, 130 N.E.2d 785, 788

       (Ind. Ct. App. 1955) (“It is fundamental, we think, that facts or questions which

       were in issue in a former action and were there judicially determined are

       conclusively settled by a judgment rendered therein, and that such facts or

       questions become res adjudicata and may not be litigated in a subsequent action

       between the same parties or their privies regardless of the form the issue may

       take in the subsequent action.… The factual issues in both proceedings were

       substantially the same and were found against her in the first suit and are

       therefore res adjudicata.”).


                             II. The Second Contempt Order
[21]   Mills challenges the trial court’s determination that Kimbley was not found to

       be in contempt for violating the provisions of the Order.

               In order to be held in contempt for failure to follow the court’s
               order, a party must have willfully disobeyed the court order. Ind.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 21 of 28
               High School Athletic Ass’n v. Martin, 765 N.E.2d 1238, 1241 (Ind.
               2002). The order must have been so clear and certain that there
               could be no question as to what the party must do, or not do, and
               so there could be no question regarding whether the order is
               violated. Id. A party may not be held in contempt for failing to
               comply with an ambiguous or indefinite order. Otherwise, a
               party could be held in contempt for obeying an ambiguous order
               in good faith. Bowyer v. Ind. Dep’t of Natural Resources, 798 N.E.2d
               912, 918 (Ind. Ct. App. 2003). The determination of whether a
               party is in contempt of court is a matter left to the discretion of
               the trial court. Hancz v. City of South Bend, 691 N.E.2d 1322, 1324
               (Ind. Ct. App. 1998). We will reverse a trial court’s finding of
               contempt only if there is no evidence or inference therefrom to
               support the finding. Id.
       City of Gary v. Major, 822 N.E.2d 165, 170-71 (Ind. 2005). “When reviewing a

       contempt order, we will neither reweigh the evidence nor judge the credibility

       of witnesses.” Williamson v. Creamer, 722 N.E.2d 863, 865 (Ind. Ct. App. 2000).


[22]   The provisions of the Order are at issue, and “it is well settled that the

       construction of settlement agreements is governed by contract law.” McGraw v.

       Marchioli, 812 N.E.2d 1154, 1157 (Ind. Ct. App. 2004).


               When reviewing the trial court’s interpretation of a contract, we
               view the contract in the same manner as the trial court. Exide
               Corp. v. Millwright Riggers, Inc., 727 N.E.2d 473, 478 (Ind. Ct.
               App. 2000), trans. denied. The court should attempt to determine
               the intent of the parties at the time the contract was made by
               examining the language used to express their rights and duties.
               Id. Words used in a contract are to be given their usual and
               common meaning unless, from the contract and the subject
               matter thereof, it is clear that some other meaning was intended.
               Id. Words, phrases, sentences, paragraphs, and sections of a



       Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 22 of 28
               contract cannot be read alone. Id. The entire contract must be
               read together and given meaning, if possible. Id.
       GKN Co. v. Starnes Trucking, Inc., 798 N.E.2d 548, 552 (Ind. Ct. App. 2003).

       Mills challenges some of the trial court’s findings as well as its ultimate

       conclusion.


                                A. Challenged Findings of Fact
                                          1. Sound Meter Findings

[23]   The trial court found that Mills had never been trained in the use of his sound

       meter and that Mills had no knowledge regarding what decibel level would be

       considered a violation of the Indianapolis Noise Ordinance. Mills points to

       evidence that the meter in question gave the same reading every time when a

       particular song was played on Mills’s stereo system at a particular volume. As

       Kimbley points out, however, all this tends to prove is consistency, not accuracy.

       In any event, Mills has not established how readings from his sound meter,

       even if accurate, would tend to show a violation of the Order’s noise provisions,

       as the Order’s provisions contain no mention of decibel levels or any other

       ostensibly objective measure of noise.


                                         2. Sound Origin Findings

[24]   Mills challenges the trial court’s finding that he did not always step outside to

       verify the source of noise captured on videotape, a finding that relates to Mills’s

       four allegations of violations of the Nighttime Noise Clause. As Kimbley

       concedes, this finding is clearly erroneous. Mills points to his testimony that in

       all cases he believed the source of the noise was on Kimbley’s property. The

       Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 23 of 28
       trial court, however, was free to find that this testimony was either mistaken or

       not credible, and apparently did. Mills’s argument is an invitation to reweigh

       the evidence, which we will not do. See Williamson, 722 N.E.2d at 865.


                                              3. Abney’s Testimony

[25]   Kimbley testified that Officer Abney marked his radio in September of 2010 to

       indicate the volume below which it would be in compliance with the

       Indianapolis Noise Ordinance. Officer Abney, however, testified that she did

       not mark Kimbley’s radio. Mills points to this discrepancy and alleged

       contradictions in previous testimony by Kimbley, seemingly arguing that

       Kimbley’s credibility throughout this litigation is fatally undercut. Again,

       Mills’s argument is essentially nothing more than an invitation to reweigh the

       evidence, which this court will not do. See id. Mills has failed to establish that

       any of the trial court’s findings of fact are clearly erroneous.1


           B. Conclusion that Kimbley Was Not in Violation of
                        Nighttime Noise Clause
[26]   Mills challenges the trial court’s conclusion that Kimbley did not commit the

       four violations of the Nighttime Noise Clause alleged in the Second Contempt

       Motion. Although Mills did present evidence that, if credited, would establish




       1
         Mills also contends that Kimbley’s undermined credibility provides us with a basis to revisit and reverse the
       First Contempt Order, issued over four years ago and already challenged (and affirmed) on appeal. Mills
       provides us with no authority that indicates we could do such a thing, even if we accepted his arguments
       regarding Kimbley’s credibility.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015                 Page 24 of 28
       violations of the Nighttime Noise Clause, we have already noted that the trial

       court was free to conclude that Mills’s testimony regarding the source of the

       noise was either mistaken or not credible. Mills’s argument is yet another

       invitation to reweigh the evidence, which we will not do. See id.


               C. Alleged Violations of the Indianapolis Noise
                                 Ordinance
[27]   Finally, Mills contends that the record establishes that Kimbley violated the

       Indianapolis Noise Ordinance in all fourteen alleged violation of the Daytime

       Noise Clause and all four alleged violations of the Nighttime Noise Clause.

       The Indianapolis Noise Ordinance provides, in part, as follows:

               (a)     For purposes of this chapter, unreasonable noise shall
                       mean sound that is of a volume, frequency, or pattern that
                       prohibits, disrupts, injures, or endangers the health, safety,
                       welfare, prosperity, comfort, or repose of reasonable
                       persons of ordinary sensitivities within the city, given the
                       time of day and environment in which the sound is made.
               (b)     Except as otherwise provided in this section, it shall be
                       unlawful for any person to make, continue, or cause to be
                       made or continued any unreasonable noise.
               (c)     In addition to the foregoing, any person who performs any
                       of the acts enumerated in this subsection, or who causes or
                       allows the performance of any of such acts in or upon any
                       property owned, occupied, or controlled by him, shall be
                       in violation of this section.
                       (1)      Horns and signaling devices. The sounding of any
                                horn or signaling device on any automobile,
                                motorcycle, or other vehicle in any public street or
                                public place of the city, in a manner that makes

       Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 25 of 28
                                unreasonable noise and continuing to do so after
                                being asked to stop.
                       (2)      Machines and devices for producing sound. Playing,
                                using, or operating, or permitting to be played,
                                used, or operated, any radio, television, digital
                                media player, loudspeaker, sound amplifier, musical
                                instrument, or any machine or device for producing
                                or reproducing sound in a manner that makes
                                unreasonable noise and continuing to do so after
                                being asked to stop, except when a permit granted
                                therefor for some special occasion is in effect. The
                                operation of any such machine or device in a
                                manner that produces sound plainly audible to a
                                person with normal hearing:
                                a.      From any place other than the property on
                                        which the sound source is located when the
                                        machine or device is being operated between
                                        the hours of 10:00 p.m. and 7:00 a.m.;
                                b.      From a distance greater than seventy-five (75)
                                        feet from the sound source of the machine or
                                        device when it is located in any public street
                                        or public place of the city; or
                                c.      In any public conveyance other than a
                                        taxicab or jitney, except for a person who is
                                        voluntarily listening to the machine or device
                                        through earplugs; shall be prima facie
                                        evidence of a violation of this subsection,
                                        except when a permit granted therefor for
                                        some special occasion is in effect.
[28]   As for the alleged daytime allegations, the only evidence in the record that any

       of the noises emanating from Kimbley’s property were “unreasonable” was

       Mills’s testimony. The trial court was free to disregard this testimony on the

       basis that it found Mills not to be a “reasonable person[] or ordinary

       Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 26 of 28
       sensitivities” based on the record, including Mills’s videotaped evidence of the

       alleged violations. As for the alleged nighttime violations, we have already

       concluded that the trial court’s finding that Mills failed to prove that the noise

       was coming from Kimbley’s property was not clearly erroneous. We conclude

       that the trial court did not abuse its discretion in declining to find Kimbley to be

       in contempt of court for violating the provisions of the Order.


                                        III. Attorney’s Fees
[29]   Finally, Mills contends that the trial court erred in awarding Kimbley all of his

       requested attorney’s fees, as he was successful in establishing only five of the

       twenty-nine violations alleged in the Kimbley Contempt Motion. Mills

       essentially argues that Kimbley cannot be a “prevailing party” pursuant to the

       Order because not all of his claims were successful. The term “prevailing

       party” is not defined in the Order, but the Indiana Supreme Court has adopted

       the following definition: “The party to a suit who successfully prosecutes the

       action or successfully defends against it, prevailing on the main issue, even

       though not necessarily to the extent of his original contention. The one in whose favor

       the decision or verdict is rendered and judgment entered.” Reuille v. E.E.

       Brandenberger Const., Inc., 888 N.E.2d 770, 771 (Ind. 2008) (citing BLACK’S LAW

       DICTIONARY 1188 (6th ed. 1990)) (emphasis added). The fact that not all of

       Kimbley’s claims carried the day does not prevent him from being a prevailing

       party. The trial court did not err in awarding Kimbley attorney’s fees.



                                               Conclusion
       Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 27 of 28
[30]   We conclude that the trial court did not err in concluding that Mills’s

       allegations of harassment were res judicata, did not abuse its discretion in

       denying Mill’s allegations of contempt and granting some of Kimbley’s, and did

       not erroneously award attorney’s fees to Kimbley pursuant to the order.


[31]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1403-PL-212|June 3, 2015   Page 28 of 28
