Court of Appeals of Indiana | Opinion 14A05-1406-PL-281 | April 15, 2015 Page 1 of 8

ATTORNEY FOR APPELLANT

Dale Arnett

Winchester, Indiana

ATTORNEYS FOR APPELLEE

Alan S. Townsend

Bradley M. Dick

Bose McKinney & Evans LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Norman Wagler, Nathan 

Wagler, and Janet Wagler,

Appellants-Defendants,

v.

West Boggs Sewer District, Inc.,

Appellee-Plaintiff

April 15, 2015

Court of Appeals Case No.

14A05-1406-PL-281

Appeal from the Daviess Circuit 

Court

The Honorable Mark R. McConnell, 

Special Judge

Trial Court Case Nos. 14C01-0902-

PL-62 and -64

Crone, Judge.

Case Summary

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

complaints against Norman Wagler and Nathan and Janet Wagler (collectively 

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

its sewer system pursuant to Indiana Code Section 8-1-2-125. The statute
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provides that a not-for-profit public sewer utility, such as West Boggs, may 

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

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

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

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

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

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

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

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

Court, which denied certiorari in 2014.

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

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

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

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

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

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

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

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

this is an impermissible collateral attack on the underlying judgments and 

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

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

Indiana Appellate Rule 66(E) because of the frivolousness and vexatiousness of 
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their appeal. We agree and therefore remand for a calculation of appellate 

attorneys’ fees to which West Boggs is entitled.

Facts and Procedural History

West Boggs v. Norman

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

N.E.2d 363 (Ind. Ct. App. 2012) (“Wagler I”), the Indiana Supreme Court 
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denied transfer, 989 N.E.2d 338 (Ind. 2013), and the U.S. Supreme Court

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

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

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

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

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

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

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

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

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

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

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

motion with this Court, which also was denied.

West Boggs v. Nathan and Janet

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

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

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

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

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

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

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

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

and the U.S. Supreme Court denied certiorari.
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[8] In May 2012, West Boggs filed a motion for rule to show cause, asking that 

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

judgment. The contempt proceeding was delayed and ultimately stayed 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Discussion and Decision

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

1

 See Ind. Code § 8-1-2-125(k) (“A not-for-profit public sewer utility may not require a property owner to 

connect to the not-for-profit public sewer utility's sewer system if: (1) the property is located on at least ten 

(10) acres; (2) the owner can demonstrate the availability of at least two (2) areas on the property for the 

collection and treatment of sewage that will protect human health and the environment; (3) the waste stream 

from the property is limited to domestic sewage from a residence or business; (4) the system used to collect 

and treat the domestic sewage has a maximum design flow of seven hundred fifty (750) gallons per day; and 

(5) the owner, at the owner’s expense, obtains and provides to the district a certification from the local health 

department or the department's designee that the system is not failing.”).
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which they did not file. That argument is meritless because Article 1, Section 

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

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

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

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

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

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

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

affirm them.

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

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

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

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

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

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

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

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

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

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

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

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

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

not even address the Contempt Orders” and “simply seek to re-litigate the 
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Judgments,” which they may not do. Appellee’s Br. at 28. Moreover, we agree 

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

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

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

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

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

[14] Affirmed and remanded.

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