                                                                  FILED
                                                             Aug 31 2016, 9:59 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEY FOR APPELLEE
      Victoria L. Bailey                                          Cassandra A. Nielsen
      Marion County Public Defender Agency                        Office of Corporation Counsel
      Indianapolis, Indiana                                       Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Tina Herron,                                                August 31, 2016
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  49A02-1602-OV-370
              v.                                                  Appeal from the Marion Superior
                                                                  Court
      City of Indianapolis,                                       The Honorable Alicia A. Gooden,
      Appellee-Plaintiff.                                         Judge
                                                                  Trial Court Cause No.
                                                                  49G21-1405-OV-15215



      Pyle, Judge.


                                        Statement of the Case
[1]   Tina Herron (“Herron”) appeals the trial court’s sanction of a $1,000 fine for

      her indirect contempt of court in a civil proceeding. She argues on appeal that

      the trial court abused its discretion in imposing the $1,000 fine because the fine

      was punitive rather than compensatory or coercive in nature, which is

      impermissible in a civil contempt proceeding. Because we agree that the trial
      Court of Appeals of Indiana | Opinion 49A02-1602-OV-370 | August 31, 2016               Page 1 of 8
      court’s sanction was impermissibly punitive, we reverse and remand with

      instructions for the trial court to vacate Herron’s sanction.


[2]   We reverse and remand with instructions.


                                                            Issue
                 Whether the trial court abused its discretion when it ordered
                 Herron to pay a fine of $1,000 as a sanction for her contempt of
                 court.

                                                            Facts
[3]   On April 14, 2014, the City of Indianapolis (“the City”) filed a civil complaint

      against Herron alleging that she had committed six violations of the Revised

      Code of the Consolidated City of Indianapolis and Marion County (“the

      Revised Code”) regarding the care and treatment of her animals. 1 On June 3,

      2014, the trial court held a bench trial on the complaint, and Herron appeared

      pro se. At the conclusion of the trial, the court entered judgment in favor of the

      City on all six counts and prohibited Herron from owning or keeping animals in

      Marion County.


[4]   On November 15, 2014, Indianapolis Animal Care and Control (“IACC”)

      officers Jason Kindig (“Officer Kindig”) and Jessica Kelley (“Officer Kelley”)

      conducted a follow-up investigation to determine whether Herron was

      complying with the trial court’s order. They had received a complaint that




      1
          The nature of these charges is not a part of the record.


      Court of Appeals of Indiana | Opinion 49A02-1602-OV-370 | August 31, 2016     Page 2 of 8
      Herron was living at an address on Goya Street in Indianapolis along with

      several animals. When they arrived at the address, they found her there with

      nine dogs. As a result, Officer Kindig cited Herron with an additional violation

      of the Revised Code.2


[5]   A month later, on December 24, 2014, the City filed a motion for the court to

      issue a rule to show cause and to find Herron in contempt of court for violating

      the court’s June 3 order that she not own or keep animals. On January 6, 2015,

      the trial court ordered Herron to appear for a hearing to show cause as to why

      she should not be held in contempt of court. Subsequently, on April 29, 2015,

      the City moved to amend its motion for contempt. In the amended motion, the

      City requested “the imposition of a thirty (30) day jail sentence for [Herron],

      and all other relief just and proper in the premises.” (App. 32). The City also

      requested “the costs of this action,” but it did not specify the amount of its

      costs. (App. 32). The next day, the trial court granted the City’s motion to

      amend its contempt motion.


[6]   On November 23, 2015, Herron filed a verified motion to dismiss the City’s

      motion for contempt on the basis that the City was seeking a remedy that was

      not available in civil proceedings—jail time—without offering her the

      opportunity to purge her contempt to avoid the jail time. The City responded,




      2
        Officer Kelley returned to the same residence on June 2, 2015 with a search warrant and found Herron
      there with twelve dogs.



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      arguing that Herron’s motion was premature because she had not yet been

      found in contempt. The City also argued that a sentence of imprisonment was

      permissible to coerce Herron’s compliance with the trial court’s order. On

      December 2, 2015, Herron filed a second motion to dismiss the City’s motion

      for contempt, again arguing that the City’s requested sanctions were not

      available in a civil proceeding. The City again responded, this time arguing

      that Herron’s repetitive motions to dismiss were improper under Indiana Trial

      Rule 12(G). On December 10, 2015, the trial court denied Herron’s motions to

      dismiss, concluding that her arguments were premature as it had not yet found

      her in contempt of court.


[7]   Four days later, on December 14, 2015, the trial court held a hearing on the

      City’s contempt motion and its rule to show cause. At the hearing, the City

      requested that the trial court sanction Herron with a fine of $2,500, but it did

      not present any evidence of its costs for the action. At the conclusion of the

      hearing, the court found that Herron had willfully violated its June 3 order that

      she not own or keep animals. As a sanction, the court ordered that Herron pay

      a $1,000 fine within ninety days.


[8]   Herron subsequently filed a motion to correct error in which she argued that the

      trial court’s fine was punitive and, therefore, should be suspended because such

      a sanction was not allowed in a civil contempt hearing without offering her a

      chance to purge her contempt to avoid the fine. The trial court denied Herron’s

      motion to correct error without a hearing. She now appeals.



      Court of Appeals of Indiana | Opinion 49A02-1602-OV-370 | August 31, 2016   Page 4 of 8
                                                    Decision
[9]    On appeal, Herron does not challenge the trial court’s determination that she

       was in contempt of the court’s June 3, 2014 order. Instead, she argues that the

       trial court abused its discretion when it denied her motion to correct error

       because, according to her, it improperly sanctioned her with a punitive $1,000

       fine in its contempt order. She acknowledges that a court may order a

       compensatory or coercive fine as a sanction for contempt. However, she asserts

       that there was no evidence that the trial court’s fine here was compensatory in

       nature because it did not compensate the City for its actual losses. She also

       asserts that it was not coercive in nature because the trial court did not offer her

       an opportunity to purge her contempt prior to requiring her to pay the fine.

       Accordingly, she asserts that the fine was a punitive sanction that was

       impermissible in a civil contempt proceeding.


[10]   Preliminarily, we note that the City did not submit an Appellee’s Brief, even

       though it did file an appearance. In such a situation, we do not undertake the

       burden of developing arguments for the appellee. Damon Corp. v. Estes, 750

       N.E.2d 891, 892-93 (Ind. Ct. App. 2001). Applying a less stringent standard of

       review with respect to showings of reversible error, we may reverse the lower

       court if the appellant can establish prima facie error. Id. at 893. Prima facie, in

       this context, is defined as “‘at first sight, on first appearance, or on the face of

       it.’” Id. (quoting Johnson Cnty. Elec. Membership Corp. v. Burnell, 484 N.E.2d 989,

       991 (Ind. Ct. App. 1985)). We also recognize that the determination of

       damages in a contempt proceeding is within the trial court’s discretion. In re

       Court of Appeals of Indiana | Opinion 49A02-1602-OV-370 | August 31, 2016     Page 5 of 8
       Adoption of A.A., 51 N.E.3d 380 (Ind. Ct. App. 2016), reh’g denied. We will

       reverse a reward of damages only if there is no evidence to support the award.

       Id.


[11]   Turning to Herron’s claim, we note that the rights and remedies in a civil

       contempt case are distinct from the rights and remedies in a criminal contempt

       case, although they may arise from the same acts. Nat’l Educ. Ass’n—South Bend

       v. South Bend Cmty. School Corp., 655 N.E.2d 516, 522 (Ind. Ct. App. 1995). The

       primary objective of a civil contempt proceeding is not to punish the contemnor

       but to coerce action or to compensate the aggrieved party. Evans v. Evans, 766

       N.E.2d 1240, 1245 (Ind. Ct. App. 2002). A civil contempt is not an offense

       against the dignity of the court, but is for the benefit of a party damaged by the

       failure of another to comply with a court order issued for the benefit of the

       aggrieved party. Id. at 1244-45. Accordingly, “‘[w]ithout regard to economic

       resources, once a party is found in contempt, the trial court has the inherent

       authority to compensate the aggrieved party for losses and damages resulting

       from another’s contemptuous actions.’” In re Paternity of Pickett, 44 N.E.3d 756,

       770-71 (Ind. Ct. App. 2015) (quoting Scoleri v. Scoleri, 766 N.E.2d 1211, 1222

       (Ind. Ct. App. 2002) (internal quotations omitted)). “‘Any type of fine or

       imprisonment not for the aggrieved party’s benefit must be considered punitive

       in nature and not properly imposed in a civil contempt proceeding.’” Nance v.

       Miami, 825 N.E.2d 826, 838 (Ind. Ct. App. 2005) (quoting Nat’l Educ. Ass’n—

       South Bend, 655 N.E.2d at 522), trans. denied. A fine, however, is permissible in

       a civil contempt hearing if the contemnor is afforded an opportunity to purge

       Court of Appeals of Indiana | Opinion 49A02-1602-OV-370 | August 31, 2016   Page 6 of 8
       the offense by coming into compliance with the trial court’s order, in which

       case the fine would be considered coercive rather than punitive. See Nat’l Educ.

       Ass’n—South Bend, 655 N.E.2d at 523.


[12]   We agree with Herron that the trial court’s fine was not compensatory in nature

       because there is no evidence that it was designed to compensate the City for its

       actual damages. It is well-established that any damages awarded in

       compensation to an aggrieved party must be based on the aggrieved party’s

       actual damages. Nance, 825 N.E.2d at 837. Here, while the City requested a

       $2,500 fine, it did not produce any evidence of its damages to support that

       request. The trial court also failed to provide any basis for its determination

       that $1,000 would compensate the City for its losses.


[13]   Furthermore, there is no evidence that the trial court intended the City, the

       aggrieved party, to receive the fine as the trial court ordered that the fine should

       be payable to the Marion County Clerk. The court did not order that the Clerk

       should subsequently transfer the fine to the City. We have previously held that

       a fine that must be paid to the clerk rather than the aggrieved party is not

       compensatory in nature because it does not compensate the aggrieved party.

       See Hancz v. City of South Bend, 691 N.E.2d 1322, 1326 (Ind. Ct. App. 1998)

       (holding that a punitive fine to be paid to the clerk of court rather than the City,

       the aggrieved party, was not compensatory and was void as contrary to law).


[14]   Next, we conclude that the fine was not coercive in nature because it was not

       designed to coerce Herron’s compliance with the trial court’s original order by


       Court of Appeals of Indiana | Opinion 49A02-1602-OV-370 | August 31, 2016   Page 7 of 8
       allowing her to purge her contempt. The trial court could have made the fine

       coercive by making her payment of the fine contingent on her compliance with

       the June 3 order, but it did not do so. See Nat’l Educ. Ass’n—South Bend, 655

       N.E.2d at 523 (noting that a fine is coercive if the contemnor is offered an

       opportunity to purge the contempt).


[15]   Because Herron’s fine was not compensatory or coercive in nature, we

       conclude that it was solely punitive and was therefore impermissible in a civil

       proceeding. See id. (“Any type of remedy in a civil contempt proceeding must

       be coercive or remedial in nature.”). As a result, we reverse the trial court’s

       denial of Herron’s motion to correct error and remand with instructions for the

       court to vacate its sanction for Herron’s contempt finding.


[16]   Reversed and remanded with instructions.


       Bradford, J., and Altice, J., concur.




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