MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Oct 17 2018, 9:04 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Douglas M. Grimes                                        Curtis T. Hill, Jr.
Douglas M. Grimes, PC                                    Attorney General of Indiana
Gary, Indiana
                                                         Aaron T. Craft
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Douglas M. Grimes,                                       October 17, 2018
Appellant,                                               Court of Appeals Case No.
                                                         45A05-1711-MI-2818
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Elizabeth F.
Appellee.                                                Tavitas, Special Judge
                                                         Trial Court Cause No.
                                                         45D03-1710-MI-2



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2818 | October 17, 2018         Page 1 of 10
                                          Case Summary
[1]   While representing a litigant in a small claims action, attorney Douglas M.

      Grimes (“Grimes”) was found to be in direct criminal contempt of court. As a

      sanction, the trial court ordered Grimes to pay $100. Grimes now brings this

      pro se appeal, raising several issues, which we consolidate and restate as whether

      the trial court abused its discretion by finding him to be in contempt.


[2]   We affirm.



                            Facts and Procedural History
[3]   Grimes represented Ronald Prothos (“Prothos”), the defendant in a small

      claims action brought by Tawanna Brown (“Brown”). The case arose after

      Brown purchased a property that Prothos had been occupying. Brown obtained

      an order granting her immediate possession of the property, and the trial court

      set a hearing on damages. The damages hearing was held in October 2017, at

      which Grimes appeared on behalf of Prothos and Brown appeared pro se.


[4]   At the hearing, Brown testified that an air conditioning unit had been removed

      from the property. Throughout the hearing, Grimes asked Brown repetitive

      questions concerning, inter alia, how old the missing unit was and her basis for

      believing Prothos was responsible. At times, the trial court told Grimes that a

      question had been asked and answered. At one point, Grimes kept interrupting

      Brown, and the trial court told Grimes that he needed to “let her answer the

      questions.” Tr. Vol. II at 11. After later expressing concern that a microphone

      Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2818 | October 17, 2018   Page 2 of 10
      was not picking up Grimes’s voice, the trial court instructed Grimes that he

      would “need to be at a microphone or we’re not picking you up.” Id. at 14.


[5]   When Grimes asked Brown the age of the unit—a question he had previously

      asked twice—this exchange followed:


              Court:           Asked and answered.

              Grimes:          I didn’t ask . . . I didn’t ask that question before.

              Court:           Yes you did.

              Grimes:          Well what was the answer?

              Court:           Asked and answered.

              Grimes:          What was the answer . . . I’m asking what was the . . .

              Court:           Your next . . .

              Grimes:           . . . answer . . . you said . . .

              Court:            . . . your next question.

      Q:      Yes how old was the unit?

              Court:           Asked and answered.

              Grimes:          Well what was the . . . what was the . . . if the Court would
                               allow may I also just ask that question once again, to get an
                               answer to the question?

              Court:           No you may not.

      Id. at 17-18.


[6]   When Grimes later cross-examined Brown about an exhibit, the trial court

      again expressed concern that Grimes was not being picked up by a microphone.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2818 | October 17, 2018   Page 3 of 10
The trial court stated that it would not work for Brown and Grimes to share a

microphone. Grimes explained that he needed to point to the exhibit as he

asked Brown questions. The court then told Grimes that he would “really need

to speak up.” Id. at 22. Shortly thereafter, there was the following exchange:


        Court:           Okay so you’re done with that exhibit then?

        Grimes:          No not yet.

        Court:           I - - I’m going to ask you to step back, I’ll take the exhibit,
                         go to your microphone.

        Grimes:          Let me make my record.

        Court:           I’m going to ask you to go to the microphone and make
                         your record.

        Grimes:          I . . . will and I’m going to make my record. I am
                         requesting that the Court recuse itself because of the
                         outward hostility shown to counsel in this particular case,
                         and its not just the first time, [it has] happened repeatedly.
                         Where for some reason this Judge cannot be fair to my
                         clients in these proceedings because I’m representing them
                         and so I respectfully ask the Court to recuse itself from this
                         case.

        Court:           Your motion is denied. The Rules of Professional Conduct
                         require you to act . . . in a way that conforms with the Rules
                         of Professional Conduct and this Court under the Rules of
                         Evidence has the duty and the ability to determine the
                         decorum and the procedures in this Court and . . . your
                         motion is denied. Your next question.

        Grimes:          My next question is the grounds for the Court recusing
                         other than simply the power of the Court?

        Court:           Your next question or cross-examination.

Id. at 23-24.

Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2818 | October 17, 2018   Page 4 of 10
[7]   Later, Grimes again asked Brown whether she had seen Prothos remove the

      unit, which led to this exchange:


              Court:           I’m gonna . . . tell you Mr. Grimes that if you continue to
                               ask the same questions over and over again, I will then stop
                               cross-examination. We are going to finish both of these
                               cases today and the Court is going to rule today and I’m not
                               going to have you waste my time.

              Grimes:          Once again, I think, the record now clearly reflects the
                               Court’s attitude toward this case and toward counsel. So,
                               once again I respectfully ask the Court to recuse itself.

      Id. at 28. The trial court declined the request, and Grimes said that he had

      nothing further on cross-examination. At that point, the trial court asked

      Brown if there was anything she wanted to explain, noting that the court would

      be permitting only direct examination, cross-examination, and redirect in the

      small claims matter. As Brown started to speak on redirect, Grimes interjected:


              Grimes:          Just one second please, I want to make my record. Once
                               again, the Court has indicated her bias and has ind . . .

              Court:           Denied sit down . . .

              Grimes:          [inaudible]

              Court:            . . . sit down.

              Grimes:          [inaudible]

              Court:           . . . sit down Mr. Grimes . . .

              Grimes:          . . . Judge I have the right to make my record.

              Court:           Mr. Grimes . . .

              Grimes:          . . . I have the right . . .

      Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2818 | October 17, 2018   Page 5 of 10
        Court:           . . . sit down I will hold you in contempt of Court . . .

        Grimes:          . . . I have a right to make a record.

        Court:           You are in direct criminal contempt of court if you continue
                         to disrupt this proceeding.

        Grimes:          I think the record shows . . .

        Court:           You may continue.

        Brown:           Um I was . . . I don’t know what I wanted to say is that . . .

        Grimes:          No - - no - - no there’s no question before you.

        Brown:           I thought it was . . . .


Id. at 28-29. The court then said that it would be holding a five-minute recess to

give Grimes time to consider his “next move in this case.” Id. at 30. The court

stated that Grimes was “continually . . . violating the code of professional

conduct” by disrupting the tribunal. Id. After the recess, the court found “that

Mr. Grimes is in direct criminal contempt of the Court.” Id. at 31. The trial

court then made the following statement:


        [R]epeatedly during these proceedings Mr. Grimes has argued
        with the Court, has talked over the Court, has not taken the
        direction of the Court which, for example, . . . being told where
        to stand so that I can make a record at a microphone, he has
        insisted on . . . defying the Court’s directions. [He] has been told
        numerous times not to ask the same questions that have been
        asked, that Mr. Grimes is delaying and impending [sic] the
        progress of this trial and the justice that this Court is bound to
        deliver. Under the Rules of Evidence this Court . . . has the duty
        to make sure that decorum is followed in this Court. [His]

Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2818 | October 17, 2018   Page 6 of 10
              conduct has been disrespectful to the Court . . . and . . . has been
              impeding the progress of this case. Mr. Grimes, we can hold
              your contempt hearing now or we can hold it after these
              proceedings are concluded, what is your preference?


      Id. Grimes elected to postpone the hearing, which the court held immediately

      after ruling on the underlying matter. At the hearing, the court again explained

      its finding of direct criminal contempt and offered Grimes an opportunity to

      purge himself. After Grimes made a statement, the trial court imposed a fine of

      $100. The court later entered a written order from which Grimes now appeals.



                                 Discussion and Decision
[8]   Contempt of court “is not a criminal offense. It is a sui generis proceeding

      neither civil nor criminal in nature, although both of those labels are used to

      describe certain categories of contempt.” State v. Heltzel, 552 N.E.2d 31, 33

      (Ind. 1990). “It is soundly within the discretion of the trial court to determine

      whether a party is in contempt, and we review the judgment under an abuse of

      discretion standard.” Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 202 (Ind.

      2012). An abuse of discretion occurs “when the trial court’s decision is against

      the logic and effect of the facts and circumstances before it.” Meyer v. Wolvos,

      707 N.E.2d 1029, 1031 (Ind. Ct. App. 1999), trans. denied. In reviewing a

      contempt finding, we neither reweigh the evidence nor judge the credibility of

      witnesses. Mitchell v. Mitchell, 785 N.E.2d 1194, 1198 (Ind. Ct. App. 2003).

      Moreover, “[i]n cases of direct contempt, we accept as true the statement

      entered of record by the trial court. However, we examine the record to

      Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2818 | October 17, 2018   Page 7 of 10
       determine whether the acts recorded do, in fact, constitute contempt.” Hopping

       v. State, 637 N.E.2d 1294, 1295 n.1 (Ind. 1994) (citation omitted).


[9]    The trial court found that Grimes had engaged in direct criminal contempt, a

       category of contempt that “involves actions occurring near the court, interfering

       with the business of the court, of which the judge has personal knowledge.” Id.

       at 1296. Although the Indiana Code contains statutes pertaining to direct

       criminal contempt, see, e.g., Ind. Code § 34-47-2-1, our supreme court has

       explained that “[t]he power of Indiana courts to summarily punish for direct

       criminal contempt, while specified by statute, rests upon the common law” and

       “is inherent in the courts,” Hopping, 637 N.E.2d at 1296. Ultimately,


               [c]ontempt of court involves disobedience of a court which
               undermines the court’s authority, justice, and dignity. Any act
               related to a current or pending proceeding which tends to deter
               the court from the performance of its duties may support a
               contempt proceeding. Any act which manifests a disrespect and
               defiance of a court may constitute direct criminal contempt.


       Id. at 1297.


[10]   At the damages hearing, Grimes engaged in repetitive questioning. After being

       told that a question had been asked and answered—which it had been, twice

       before—Grimes refused to accept the court’s ruling and immediately thereafter

       asked the same question again. Later, Grimes did not return to his microphone

       when asked. He continued to argue despite repeated instructions to sit down.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2818 | October 17, 2018   Page 8 of 10
       Grimes also interrupted Brown, telling her there was no question before her

       when Brown had just been given permission to continue with redirect.


[11]   Grimes disputes that his conduct rose to the level of direct criminal contempt.

       In so arguing, Grimes suggests that his conduct was excusable because the trial

       court should have granted the oral motion to disqualify. Yet, the instant matter

       is not an appeal from the denial of that motion—and it is well-settled that “[t]he

       wrong of the judge, if any, cannot justify the misconduct of counsel.” Dodge v.

       State, 140 Ind. 284, 39 N.E. 745, 746 (1895). Grimes also defends his conduct

       as “legitimate advocacy,” Br. of Appellant at 15, and asserts that his actions

       were permissible due to the informal nature of small claims hearings. At one

       point, Grimes appears to blame the courtroom’s technological shortcomings for

       his refusal to return to his microphone. Grimes also contests the trial court’s

       suggestion that he had violated the Indiana Rules of Professional Conduct.


[12]   Yet, irrespective of the configuration of the courtroom or Grimes’s professional

       responsibilities, the record indicates that Grimes was disrespectful and defiant

       at times, in ways that interfered with the progress of the damages hearing. We

       therefore cannot say that the contempt finding was contrary to the logic and

       effect of the circumstances before the trial court.1




       1
         In his Statement of Case, Grimes briefly draws our attention to a $128 appeal-preparation fee charged by
       the court reporter that Grimes asserts was unauthorized by local rules. Grimes does not mention this fee
       again until his Conclusion, in which he seeks a refund. Grimes has waived any challenge to this fee by
       failing to support his argument with cogent reasoning in his Argument section. See Ind. Appellate Rule
       46(A)(8)(a); Reed v. Reid, 980 N.E.2d 277, 296-97 (Ind. 2012).

       Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2818 | October 17, 2018          Page 9 of 10
[13]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2818 | October 17, 2018   Page 10 of 10
