      MEMORANDUM DECISION
                                                                  Jun 04 2015, 9:27 am
      Pursuant to Ind. Appellate Rule 65(D), this                                         Jun 04 2015, 9:27 am




      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT
      Donald J. Smith
      Stark & Smith, LLP
      Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Control Building Services, Inc.,                         June 4, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A04-1412-PL-547
              v.                                               Appeal from the Marion Superior
                                                               Court

      Simon Services, Inc., d/b/a                              The Honorable James B. Osborn,
      Simon Business Network,                                  Judge
      Appellee-Plaintiff.                                      Cause No. 49D14-0807-PL-33720




      Najam, Judge.


                                         Statement of the Case
[1]   Control Building Services, Inc. (“Control”) was found in contempt of a trial

      court order, which mandated that Control comply with a settlement agreement

      entered into with Simon Services, Inc., d/b/a Simon Business Network

      (“Simon”), and assessed Control a $10,000 per diem sanction for every day that
      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PL-547| June 4, 2015                          Page 1 of 6
      Control remained in contempt. Control now appeals and presents two issues

      for our review. However, sua sponte, we address one dispositive issue, namely,

      whether the trial court erred when it used its contempt power to enforce an

      obligation to pay a money judgment.


[2]   We reverse.


                                  Facts and Procedural History
[3]   Following a protracted lawsuit, which began in 2008, Control and Simon

      entered into a settlement agreement (“the agreement”) on May 28, 2013.

      Under the terms of the agreement, Control agreed to pay Simon a total amount

      of $850,000, made payable in three installments.1 Control agreed that the first

      installment, which was the largest at $300,000, would be immediately due, and

      the last two installments—each of $275,000—would be due on January 1, 2014,

      and June 30, 2014, respectively. In the event that Control paid the first

      installment to Simon, Simon agreed to dismiss the underlying lawsuit with

      prejudice within ninety days. However, if Control failed to pay an installment,

      Simon was entitled to recover an award of the attorney’s fees it incurred as a

      result of such failure.


[4]   Control did not pay the first installment, and, on June 27, 2013, Simon moved

      to enforce the agreement. After a hearing on July 29, the trial court ordered




      1
        Ed Turen, the principal owner of Control, personally guaranteed payment of the second and third
      installments.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PL-547| June 4, 2015              Page 2 of 6
      Control to pay the first installment on or before August 12, and, on its own

      initiative, the court stated that, if Control failed to do so, “the Court will find

      Control . . . in contempt of this order and will sanction Control . . . $10,000.00

      a day for every day from and including August 13, 2013[,] until and including

      the date payment is made.” Appellant’s App. at 2. Control paid the first

      installment before August 13, and Simon dismissed the case with prejudice on

      December 23.


[5]   Control also paid its second installment on January 1, 2014, but it did not pay

      the final installment on or before June 30. Thus, on August 5, Simon moved to

      set aside the dismissal of the underlying lawsuit and, for the second time, to

      enforce the settlement agreement. After a hearing, the trial court reinstated the

      lawsuit on September 26, and, after a subsequent hearing on October 31, the

      court ordered Control to pay the final installment within ten days of the order.

      Again on its own accord, the court stated that Control would be “fined

      $10,000.00 a day for every day after [November 10, 2014,] until full amount is

      paid.” Appellant’s App. at 54. Ultimately, following a review hearing on

      December 1, the trial court assessed a $10,407.802 fine against Control, which

      was “in addition to the $275,000 plus applicable pre-judgment interest, already

      owed by [Control] to [Simon] under the settlement agreement and the Court’s

      previous Orders.” Appellant’s App. at 28. This appeal ensued.




      2
        Control did not supply the trial court’s December 1 order in its Appendix, so we do not know how the
      court arrived at the $10,407.80 figure stated in the Chronological Case Summary.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PL-547| June 4, 2015               Page 3 of 6
                                     Discussion and Decision
[6]   At the outset, we note that Simon does not file an appellee’s brief, and, as we

      have stated:

              [w]hen an appellee has not filed an answer brief, we need not
              undertake the burden of developing an argument on the
              appellee’s behalf. Rather, we may reverse the trial court if the
              appellant presents a case of prima facie error. Prima facie error
              means error at first sight, on first appearance, or on the face of it.
              If an appellant does not meet this burden, we will affirm.


      In re Paternity of M.F., 956 N.E.2d 1157, 1162-63 (Ind. Ct. App. 2011) (internal

      citations omitted). With this standard in mind, we turn to the merits of

      Control’s appeal.


[7]   Control first contends that the trial court violated the due process requirements

      of Indiana’s indirect contempt of court statute, see Ind. Code § 34-47-3-5, when

      it found Control in contempt of its October 31 order. Second, and in the

      alternative, Control argues that, even if the trial court’s finding of contempt was

      proper, the $10,000 per diem fine constitutes punitive damages, which are

      impermissible in the context of civil contempt.


[8]   But we need not address Control’s arguments because it is well-settled Indiana

      law that “all forms of contempt are generally unavailable to enforce an

      obligation to pay money.” Cowart v. White, 711 N.E.2d 253, 531 (Ind. 1999)

      (citing Pettit v. Pettit, 626 N.E.2d 444, 447 (Ind. 1993); Marsh v. Marsh, 162 Ind.

      210, 70 N.E. 154, 155 (1904)), clarified on reh’g, 716 N.E.2d 401. While Control


      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PL-547| June 4, 2015   Page 4 of 6
       does not argue that contempt is not an available sanction, an appellate court

       may address an issue of sufficient importance sua sponte. See, e.g., Bufkin v. State,

       700 N.E.2d 1147, 1152 n.5 (Ind. 1998). We believe that the dispositive issue is

       whether the trial court erred when it used its contempt power to enforce

       collection of a money judgment. We hold that it did.


[9]    “Civil contempt is the failing to do something that a court in a civil action has

       ordered to be done for the benefit of an opposing party.” Flash v. Holtsclaw, 789

       N.E.2d 955, 958 (Ind. Ct. App. 2003). “[A] determination of whether a party is

       in contempt of court is a matter committed to the trial court’s sound

       discretion[,] and we will reverse a trial court’s decision in that regard only for

       an abuse of discretion.” Kicken v. Kicken, 798 N.E.2d 529, 533 (Ind. Ct. App.

       2003). “An abuse of discretion occurs when the decision is against the logic

       and effect of the facts and circumstances before the court or is contrary to law.”

       Id. And, as stated, it is contrary to law for a court to use its contempt power to

       enforce the collection of a money judgment. See, e.g., Cowart, 711 N.E.2d at

       531.


[10]   A money judgment is “any order that requires the payment of a sum of money

       and states the specific amount due, whether labeled as a mandate or a civil

       money judgment.” Hilliard v. Jacobs, 916 N.E.2d 689, 694 (Ind. Ct. App. 2009)

       (emphasis removed), trans. denied. “The key to a money judgment is the

       statement of an amount due. A money judgment must be certain and definite.

       It must name the amount due.” United Farm Bureau Mut. Ins. Co. v. Ira, 577

       N.E.2d 588, 593 (Ind. Ct. App. 1991), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PL-547| June 4, 2015   Page 5 of 6
[11]   Here, the trial court’s Order Granting Second Motion to Enforce Settlement

       Agreement “ORDERED” that “Control . . . shall, within ten days of the date of

       this Order, pay to Plaintiff the sum of $275,000, as required under the terms of

       the Settlement Agreement.” Appellant’s App. at 54. If Control failed to do so,

       the court further stated that “[Control will] be fined $10,000.00 a day for every

       day after [November 10, 2014,] until full amount is paid.” Id. The trial court’s

       order, therefore, mandated that Control pay a specific and definite sum of

       money to Simon, which is “the practical equivalent of a civil money judgment.”

       Hilliard, 916 N.E.2d at 694 (quoting Wininger v. Purdue Univ., 666 N.E.2d 455,

       458 (Ind. Ct. App. 1999), trans. denied).


[12]   Thus, the trial court abused its discretion when it found Control in contempt

       and when it imposed the $10,000 per diem fine because the court’s exercise of

       its contempt power was contrary to well-established Indiana law. As a result,

       we reverse the $10,407.80 fine assessed by the trial court to Control on

       December 1, 2014.


[13]   Reversed.


       Baker, J., and Friedlander, J., concur.




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