Pursuant to Ind.Appellate Rule 65(D), this

Memorandum Decision shall not b e 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. ATTORNEYS FOR APPELLANTS : ATTORNEYS FOR APPELLEE : R. SCOTT LEWIS DAVID E. GRAY DAVID A. LEWIS MARK E. MILLER Jeffersonville, Indiana Bowers Harrison, LLP Evansville, Indiana C. GREGORY FIFER Applegate & Fifer Jeffersonville, Indiana


## IN THE COURT OF APPEALS OF INDIANA

CITY OF JEFFERSONVILLE, INDIANA and ) CITY OF JEFFERSONVILLE SANITARY ) SEWER BOARD, ) ) Appellants

- Defendants, ) ) vs. ) No. 10A01

- 1210

- PL

- 485 ) ENVIRONMENTAL MANAGEMENT ) CORPORATION, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE CLARK CIRCUIT COURT The Honorable Vicki L. Carmichael, Judge Cause No. 10C04

- 0808

- PL

- 757
June 12, 2013 MEMORANDUM DECISION

– NOT FOR PUBLICATION RILEY, Judge2 STATEMENT OF THE CASE Appellants

- Defendants, the City of Jeffersonville ( Jeffersonville) and the City of Jeffersonville Sanitary Sewer Board (Sewer Board) (collectively, th e City), appeal the trial court ’ s award of attorney fees in favor of Appellee

- Plaintiff, Environmental Management Corporation (EMC).
We reverse and remand wi th instructions

. ISSUE The City raises three issue s for our review, which we consolidate and restate as the following single issue : Whether the trial court ’s award of attorney fees for the City’s contempt of court was supported by the evidence.

FACTS AND PROCEDURAL HISTORY This matter involves the trial court’s award of attorney fees after remand from a prior appeal. See City of Jeffersonville v. Environmental Management Corp. , 954 N.E.2d 1000 (Ind. Ct. App. 2011). On May 1, 2004, Jeffersonville through the Sewer Board entered into a contract (the Contract) with EMC for the operation and maintenance of Jeffersonville’s sewer system. EMC was obligated to operate and maintain the sewer system in accord with state, federal and other requirements. The Cont ract contained a notice and cure provision giving both parties the right to terminate “in the event of a material breach or unsatisfactory per fo rmance of a material obligation” upon 90 days ’ prior notice. Id . at 1004.3

O n April 15, 2008, the Sewer Board held a public meeting where Mayor Thomas Galligan of Jeffersonville (Mayor Galligan) discussed his concerns with EMC’s performance. Although not recorded in the meeting minutes, t he Sewer Board instructed its attorney to first send written notice to EMC r egarding its deficient operation and maintenance of the sewer treatment system and then to send a notice terminating the Contract if “ EMC had not corrected the issues within 90 days. ” Id

. at 1005. On April 18, 2008, the attorney sent EMC a letter request ing detailed operational documentation , inspection or investigation results , and records “ including lists of equipment and equipment maintenance, a history of work performed, and customer complain ts. ” I d

. However, the letter did not indicate that the Cit y intended to terminate the Contract if the performance issues were not corrected within 90 days. EMC later informed Jeffersonville that the Sewer Board ’ s April 18 letter “ requested documentation that exceeded EMC ’ s production obligations under the Contra ct. ” Id

. In its August 7, 2008 letter, t he City notified EMC that they were terminating the Contract because EMC had failed to provide records requested by the City ’ s April 18 letter and had failed to correct the operational deficiencies previously ident ified at the April 15 meeting. EMC later responded that the City still had not provided EMC with written notice of a specific material breach or unsatisfactory performance as contractually required prior to
termination.
O n August 18, 2008, EMC filed its c omplaint for declaratory judgment, breach of contract, and specific performance, as well as a motion for preliminary injunction and4

expedited hearing

. On August 22, 2008, the trial court approved the parties’ agreed entry and order (Agreed Entry) vacating and resetting the preliminary injunction hearing. Under t he Agreed Entry , the parties agreed to maintain the status quo until a ruling on EMC’s preliminary injunction motion, and that the City would neither interfere with EMC’s access to the sewer facili ties , nor hir e EMC employees pending the ruling on the preliminary injunction. On September 12, 2008, t he matter was referred to mediation. On September 23, 2008, the City filed its answer, a counterclaim against EMC, and its response to EMC’s preliminar y injunction request. T he City’s counterclaim included fraudulent inducement and damages resulting from EMC’s acts or omissions. On October 17, 2008, in a separate cause of action, EMC filed a complaint against the City , alleg ing a violation of Indiana’s Open Door Law

. O n October 23, 2008, EMC filed its motion to dismiss the City’s counterclaim in the breach of contract action , which was later denied

. O n December 1, 2008, Mayor Galligan , accompanied by two police officers, arrived at the sewer plant “ a nd took over its operations, declaring that EMC could no longer have access to the [p] lant or the treatment syste m.” Id . at 1007. That same day , EMC filed “ a verified information for contempt, a motion to enjoin further violation of the Agreed Entry, and a motion for an emergency hearing thereon against the City .” Id

. On December 3, 2008, the City filed its verified response to EMC’s contempt motion. In addition to denying that it violated the Agreed Entry, the City made a counter

- motion for contempt a gainst EMC, alleging that EMC had violated alternative dispute resolution5

rules by filing a notice of tort claim and a second Open Door Law complaint against the City subsequent to the Agreed Entry. Thereafter , both parties moved for summary judgment, whi ch the trial court denied on February 24, 2009. The trial c ourt also consolidated EMC’s four claims

– two Open Door claims, breach of contract, and the City’s contemp t

– a s well as the City’s

counter claim for trial

. A lengthy bench trial ensued, stretchi ng over three separate trial periods in June, July and December 2009 . On April 12 , 2010 , t he trial court entered judgment in favor of EMC on all four of its claims and the City’s counterclaim , awarded damages to EMC , and ordered the City to pay E MC’s atto rney fees and costs. In addition to post

- judgment interest, the trial court awarded EMC its lost profits of $268,560.39 from operation of the sewer p lant and attorney fees and costs in the amount of $315,554.04.
T he City appealed raising six issues of a lleged trial court error including EMC’s breach of contract, Open Door Law , and contempt claims as well as the trial court’s
award of attorney fees and costs

. Id . at 1003. We affirmed in part, reversed in part and remanded. Id . at 1016

- 17. Regarding th e breach of contract issue, we found that the City’s “April 18 letter did not provide EMC with written notice that the City intended to terminate the Contract,” and did not “allege inadequate performance.” Id . at 1008

- 9. This court therefore concluded t hat “the trial court did not err in concluding that the City breached its contract with EMC.” Id . at 1009. Regarding the Open Door Law Claims, we concluded that EMC waived its claims by failing to timely file them. Id . at 1011.6

Regarding the contempt a ction, we rejected the City’s argument “that it did not violate the Agreed Entry because EMC violated it first.” Id . at 1012. Because “ the City has not disputed that it violated the Agreed Entry,” we held that “the trial court did not abuse its
discretio n in finding the City in contempt of the Agreed Entry.” Id

. We next reviewed the trial court’s award of $ 315,554.04 in attorney fees and costs
to EMC . The City argued that this award was an abuse of discretion because it was awarded “ without regard to whether the [attorney] fees were incurred in relation to the Open Door Complaints, the contempt of the Agreed Entry, or the breach of contract Complaint. ” Id

. We concluded that the trial court had abused its discretion and remanded “to the trial court with instructions that the trial cou rt modify its award of [attorney] fees and costs to EMC to incl ude only the amount of [ attorney ] fees EMC incurred as a result of its contempt com plaint and costs reflecting EMC ’ s losses for filing fees and statutory wi tness fees. ” Id . at 1017.
On Ju ly 26 , 2012, the trial court held a hearing on attorney fees

. EMC introduced affidavits and time sheets from five of its attorneys at the law firm s of Applegate Fifer Pulliam LLC (Applegate) and Bowers Harrison LLP (Bowers ) . T wo of the attorney s’ affidavits contained the following statements:

3. In order for EMC to prove that the City’s actions on December 1, 2008 violated the Agreed Order, EMC had to prove at trial that the City had violated the terms of the Agreed Order , and that the City had no contractual authority to physically remove EMC without pri or notice from the City’s [waste water ] treatm ent and collection facilities. 4. Due to the City’s defenses to EMC’s claim that the City violated the Agreed Order , EMC had to prove at trial that the City had no7

contra ct ual authority to physically remove EMC without prior no tice from the City’s wastewater treatment and collection facilities in order for EMC to prove tha t the City’s action on the [sic] December 1, 2008 violat ed the Agreed Order. 5. Due to the City’s defenses to EMC’s claim that the City violated the Agreed Order, EMC had to prove at trial that the City had no contractual authority to take its actions on December 1, 2008, and that EMC had been damaged by the City’s violation of the Agreed Order. (Appellant’s App. pp. 18

- 19 , 67

- 68 )

. A ffidavit s from EMC’s t hree other attorney s contained substantially similar allegations

. As a result, e ach attorney requested fees that admittedly pertained to both EMC’s conte mpt and breach of contract claims. On September 26, 2012, the trial court issued its Findings of Fact, Conclusions of Law, and Judgment award ing EMC ’s attorney fees

. T he trial court found that EMC filed

“ it s C omplaint for D eclaratory J udgment, B reach of C ontract, and S pecific P erformance and its Plaintiff’s Motion for Preliminary I njunction and E xpedited H earing ;” that t he parties’ Agreed Entry required maintenance of the status quo ; and that EMC requested that the City be found in contempt of the Agre ed Order

. (Appellant’s A pp. p. 10 ). However, the trial court found that “[t] he City’s actions made it necessary for EMC to prove that it had the right to operate the facilities, that the City lacked the authority t o interfere with EMC’s rights, and that EMC was damaged. ” (Appellant’s A pp. p. 11 ). The trial court also found that the Contract terminated on April 30, 2010 and “ but for the City’s violation of the Agreed Order, EMC’s right to operate the facilities would have remained unimpaired through the contract termination date. ” (Appellant’s App. p. 11 ).
T he trial court further concluded that to prove the City’s contempt, EMC had to not only8

prove the City’s violation of the Agreed Order but because the City asserted its contractual authority as a def ense to the contempt claim, EMC “had to prove that the City had no contractual authority to physically remove EMC without pri or notice from the City’s waste water treat ment and collection facilities.” (Appellant’s App. p. 16). The trial
court also conclude d that “[s] olely due to the contemptuous acts of the Defendants, EMC was require d to provide i ts lost profit damages at the t rial of this case. ” (Appellant’s App. p. 16). The trial court calculated att orney fees from December 1, 2008 to February 23,
2 010 as “ $170,754.54 to the firm of [Bowers], and [attorney] fees of $76,195.5 0 to the firm of [Applegate] [...], for a total of $246,950.04.” (Appellant’s A pp. p. 13 ). The trial court then deducted fees in the amount of $19,644.91 for EMC’s Open Door Law c laims during the same period. It awarded EMC attorney fees of $227,305.13, to which it added post

- judgment interest of eight percent , resulting in a total award of $2 69 , 004

. 47

. The City now appeals. Additional facts will be provided as necessary.

D ISCUS SION AND DECISION
T he City challenges the trial court’s award of attorney fees upon remand , arguing that the trial court awarded attorney fees for legal services unrelated to the contempt

c laim

. Because the trial court entered special findings of fact and law, we apply a two

tiered standard of review on appeal. City of Jeffersonville , 954 N.E.2d at 1007. First, we determine whether the evidence supports the findings, and second, whether the findings support the judgment. Id

. We will set aside the trial court’ s findings and conclusions9

only if they are clearly erroneous and a review of the record leaves us firmly convinced that a mistake has been made. Id

. Moreo ver, in reviewing a trial court’ s findings, we neither reweigh the evidence nor reassess the credibility of the witnesses. Id

. We must accept the ultimate facts as stated by the trial court if there is evidence to sustain them. Id

. Further , we review an award of attorney fees keeping in mind that a trial court is afforded broad d iscretion in a warding attorney fees and expenses. See id . at 1012. In light of that standard, we will only reverse a t rial court’ s decision when an abuse of discretion is apparent. Id . at 1013

. A trial court has abused its discretion when its decision is clearly aga inst the logic and effect of the facts and circumstances before it. Id

. In addition , the am ount of the trial court’s award of attorney fees must be supported by
the evidence. Id

. The trial court’s findings included the following: (1) that the fees awar ded to EMC did not include “compensation for fees incurred by EMC as a result of EMC’s breach of contract claim;” (2) that attorney fees awarded “do not include compensation for fees incurred by EMC as a result of EMC’s pursuit of it s Open Door Law claims; ” and (3) that attorney fees awarded “include only compensation for fees incurred by EMC
in relation to its contempt [claim] .” (Appellant’s App. p p. 1 4

- 1 5). As noted, e ach of the five EMC attorneys submitted affidavits stating that their requested attorn ey fees included fees for EMC’s breach of contract and contempt claims.10

The imposition of sanctions to compensate the other party for injuries incurred as

a result of the contempt is within the discretion of the trial court

. Witt v. Jay Petroleum,
Inc. , 964 N.E.2d at 198, 204 (Ind. 2012) . In determining an amount of damages the tri al court may take into account the inconvenience and frustration suffered by the aggrieved party. Id . However, a n award of attorney fees is appropriately limited to those fee s incurred because of the basis underlying the award. Nance v. Miami Sand & Gravel LLC , 825 N.E.2d 826, 838 (Ind. Ct. App. 2005), trans. denied

. The party requesting an assessment of attorney fees bears the burden of proving an appropriate allocation of fees between issues for which attorney fees may be assessed and those for which they may
not. Id

. Our determination in City of Jeffersonville required the trial court on remand to “modify its award of [attorney] fees and costs to EMC to inclu de only the a mount of [attorney] fees EMC incurred as a result of its contempt com plaint and costs reflecting EMC’ s losses for filing fees and statutory witness fees. ” City of Jeffersonville , 954 N.E.2d at 1017 (emphasis added) . T he trial court’s award of attorney fe es d id not do so and we therefore reverse the trial court.
T o justify the inclusion of attorney fees in addition to those incurred with the contempt claim, EMC argue s that the contempt and the breach of contract claims were intertwined. T he trial court accepted this argument and conclud ed that to prove the City’s contempt, EMC was required “to prove that the City lacked contractual authority or legal basis to remove EMC without prior notice” from the sewer plant. (Appellant’s App. p. 16). I t further co ncluded that “[b]ut for t he City’s contemptuous acts , ” “ EMC11

would have remained in possession of the treatment plant and had the oppo rtunity to perform the contract ” and would not have been “required to provide its lost profit damages at trial.” (Appellant ’s App. p. 16 ). Although the attorney fees were incurred in preparation for and during the
consolidated trial of the Open Door Law, breach of contract , and contempt claim s , we are not persuaded that the trial court correctly concluded that the trial of t he breach of contract claim was substantially a result of Mayor Galligan’s contemptuous conduct. As shown by the trial court’s findings of fact and conclusions of law, evidence pe rtaining to the contempt claim was distinguish able from evidence on the brea ch of contract claim

. To say that one caused the other is simply not reflected in the evidence and contrary to our decision in the prior appeal. The contempt claim involved proof of the City’s willful violation of the Agreed Entry. An order of the court is only unenforceable when the court lacked jurisdiction.
Witt , 964 N.E.2d at 203 . If, in the valid exercise of its jurisdiction, a court issues an erroneous order, that order must be obeyed. Id . The only remedy from an erroneous order is appeal and di sobedience thereto is contempt. Id . Further, to prove a party’s contempt of court, evidence establishing a party’s willful disobedience of a clear and certain court order is required. See id

. at 202. It is undisputed that t he City did not challenge the trial court’s jurisdiction with respect to the Agreed Order. Instead, t he City’s argument s in defense of its contemptuous behavior were that (1) EMC violated the agreed entry first; and (2) that it had a contractual right to violate the Agreed Entry

.12

Ho wever, t he trial court found and we recognized in the prior appeal that such arguments

were “untenable.” (Appellee’s App. p. 61). Further, the parties stipulated that Mayor Galligan took over the sewer plant on December 1, 2008, instructed an EMC employe e to leave the premises, and then hired EMC employees to work at the plant. “When a p erson fails to abide by a court’ s order, that person bears the burden of showing that the violation was not willful.” Meyer v. Wolvos , 707 N.E.2d 1029, 1031 (Ind. Ct. Ap p. 1999) , trans. denied

. The City did not do so and was properly found in contempt. The breach of contract claim involved the City’s failure to comply with its notice and cure obligations prior to terminating the Contract. Findings of fact and conclusion s of law contained in the trial court’s April 12, 201 0 Judgment illustrate h ow the breach of contract claim w as distinguishable from the contempt claim

. Of the 86 findings of fact, six findings directly bore on the City’s contemptuous behavior on December 1, 2008 and the remaining findings pertain to whether EMC performed its obligations regarding staffing, reporting, and performance under the Contract. Of the 22 conclusions of law, five addressed the City’s contemptuous conduct and the remaining conclus ions pertained to whether the City complied with the notice and cure prov is i ons i n the Contract so as to permit them to terminate the Contract. Thus, t he trial court abused its discretion by not specifically apportioning the attorney fees so as to impose fees only for the contempt claim. Although the trial court excluded attorney fees incurred either as a r esult of the unsuccessful Open D oor Law claims or after trial had concluded , it again awarded “blanket compensation” to include13

fees incurred in the b reach of contrac t claim. City of Jefferso nville , 954 N.E.2d at 1013.
W e therefore reverse the trial court’s award of attorney fees to EMC , and remand for a determination as to the amount of attorney fees incurred solely for the prosecution of the contemp t claim

. CONCLUSION Based on the foregoing, we conclude that the trial court’s award of attorney fees for the City’s contempt was unsupported by the evidence. We therefore remand to the trial court with instructions to calculate the amount of attorney fee s incurred in the prosecution of EMC’s contempt complaint. Reversed and remanded with instructions. BRADFORD, J. and BROWN, J. concur