MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this 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.

ATTORNEYS FOR APPELLANT

R. Scott Lewis

David A. Lewis

Jeffersonville, Indiana

ATTORNEYS FOR APPELLEE

Mark E. Miller

Bowers Harrison LLP

Evansville, Indiana

C. Gregory Fifer

Applegate Fifer Pulliam LLC

Jeffersonville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

City of Jeffersonville, Indiana,

and City of Jeffersonville 

Sanitary Sewer Board,

Appellants-Defendants,

v.

Environmental Management 

Corporation,

Appellee-Plaintiff

September 21, 2016

Court of Appeals Case No.

10A01-1511-PL-1967

Appeal from the Clark Circuit 

Court

The Honorable Vicki L. 

Carmichael, Judge

Trial Court Cause No.

10C04-0808-PL-757

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 10A01-1511-PL-1967 | September 21, 2016 Page 1 of 15
Case Summary

[1] This is the third appeal brought by the City of Jeffersonville (“Jeffersonville”) 

and the City of Jeffersonville Sanitary Sewer Board (“Sewer Board”) 

(collectively “the City”) from the trial court’s award of attorney’s fees in favor 

of Environmental Management Corporation (“EMC”). This Court has twice 

reversed the trial court’s fee award and remanded for redetermination and 

recalculation of recoverable attorney’s fees. See City of Jeffersonville v. Envtl. 

Mgmt. Corp., 954 N.E.2d 1000 (Ind. Ct. App. 2011), and City of Jeffersonville v. 

Envtl. Mgmt. Corp., No. 10A01-1210-PL-485, 2013 WL 2716135 (June 12, 

2013), trans. denied (“EMC I” and “EMC II” respectively). The City again 

appeals arguing that the trial court abused its discretion yet a third time in 

determining and calculating the attorney’s fees incurred and recoverable by 

EMC as a result of its contempt claim against the City. Finding no abuse of 

discretion, we affirm.

Facts and Procedural History

[2] The relevant facts and procedural history as recited in the most recent 

memorandum decision by another panel of this Court in EMC II follow:

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 Contract 

contained a notice and cure provision giving both parties the 

right to terminate “in the event of a material breach or 

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unsatisfactory performance of a material obligation” upon 90 

days’ prior notice. [EMC I, 954 N.E.2d at 1004.]

On 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, the Sewer Board instructed its 

attorney to first send written notice to EMC regarding 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 requesting 

detailed operational documentation, inspection or investigation 

results, and records “including lists of equipment and equipment 

maintenance, a history of work performed, and customer 

complaints.” Id. However, the letter did not indicate that the 

City 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 Contract.” Id. In its August 7, 2008 letter, the 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 identified 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.

On August 18, 2008, EMC filed its complaint for declaratory 

judgment, breach of contract, and specific performance, as well 

as a motion for preliminary injunction and 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 the Agreed Entry, the 

parties agreed to maintain the status quo until a ruling on EMC's 

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preliminary injunction motion, and that the City would neither 

interfere with EMC’s access to the sewer facilities, nor hire EMC 

employees pending the ruling on the preliminary injunction. On 

September 12, 2008, the matter was referred to mediation. On 

September 23, 2008, the City filed its answer, a counterclaim 

against EMC, and its response to EMC’s preliminary injunction 

request. The 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, alleging a violation of Indiana’s Open 

Door Law. On October 23, 2008, EMC filed its motion to 

dismiss the City’s counterclaim in the breach of contract action, 

which was later denied.

On December 1, 2008, Mayor Galligan, accompanied by two 

police officers, arrived at the sewer plant “and took over its 

operations, declaring that EMC could no longer have access to 

the [p]lant or the treatment system.” 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 against EMC, 

alleging that EMC had violated alternative dispute resolution 

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, which the 

trial court denied on February 24, 2009. The trial court also 

consolidated EMC’s four claims—two Open Door claims, breach 

of contract, and the City’s contempt—as well as the City’s 

counterclaim for trial. A lengthy bench trial ensued, stretching 

over three separate trial periods in June, July and December 

2009. On April 12, 2010, the trial court entered judgment in favor 

of EMC on all four of its claims and the City’s counterclaim, 

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awarded damages to EMC, and ordered the City to pay EMC’s 

attorney 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 plant and attorney fees and costs in the 

amount of $315,554.04.

The City appealed raising six issues of alleged 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 the 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-[0]9. This court therefore concluded that “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. Regarding the contempt action, 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 discretion 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 court modify its award of 

[attorney] fees and costs to EMC to include only the amount of 

[attorney] fees EMC incurred as a result of its contempt 

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complaint and costs reflecting EMC’s losses for filing fees and 

statutory witness fees.” Id. at 1017.

On July 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 firms of Applegate Fifer Pulliam LLC 

[(“AFP”)] and Bowers Harrison LLP [(“Bowers Harrison”)]. 

Two of the attorneys’ 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 prior notice from the City’s [wastewater] 

treatment 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 no contractual authority to 

physically remove EMC without prior notice from 

the City’s wastewater treatment and collection 

facilities in order for EMC to prove that the City’s 

action on the [sic] December 1, 2008 violated 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.

Affidavits from EMC’s three other attorneys contained 

substantially similar allegations. As a result, each attorney 

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requested fees that admittedly pertained to both EMC’s contempt 

and breach of contract claims.

On September 26, 2012, the trial court issued its Findings of 

Fact, Conclusions of Law, and Judgment awarding EMC’s 

attorney fees. The trial court found that EMC filed “its 

Complaint for Declaratory Judgment, Breach of Contract, and 

Specific Performance and its Plaintiff's Motion for Preliminary 

Injunction and Expedited Hearing;” that the parties’ Agreed 

Entry required maintenance of the status quo; and that EMC 

requested that the City be found in contempt of the Agreed 

Order. 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 to 

interfere with EMC’s rights, and that EMC was damaged.” 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.” The trial 

court further concluded that to prove the City’s contempt, EMC

had to not only prove the City’s violation of the Agreed Order 

but because the City asserted its contractual authority as a 

defense to the contempt claim, EMC “had to prove that the City 

had no contractual authority to physically remove EMC without 

prior notice from the City’s wastewater treatment and collection 

facilities.” The trial court also concluded that “[s]olely due to the 

contemptuous acts of the Defendants, EMC was required to 

provide its lost profit damages at the trial of this case.”

The trial court calculated attorney fees from December 1, 2008 to 

February 23, 2010 as “$170,754.54 to the firm of [Bowers

Harrison], and [attorney] fees of $76,195.50 to the firm of [AFP] 

[ ... ], for a total of $246,950.04.” The trial court then deducted 

fees in the amount of $19,644.91 for EMC’s Open Door Law 

claims during the same period. It awarded EMC attorney fees of 

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$227,305.13, to which it added post-judgment interest of eight 

percent, resulting in a total award of $269,004.47.

EMC II, slip op. at *1-4 (some alterations added) (record citations omitted).

[3] The City appealed, arguing that the trial court improperly awarded attorney’s 

fees for legal services unrelated to EMC’s contempt claim. A second panel of 

this Court again reversed the trial court’s award of attorney’s fees to EMC. 

Specifically, the Court held,

[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 result of the unsuccessful Open Door Law 

claims or after trial had concluded, it again awarded “blanket 

compensation” to include fees incurred in the breach of contract 

claim. We 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 

contempt claim.

Id. at *6 (citation omitted).

[4] The trial court held remand hearings in April and July 2015. After considering 

extensive evidence and testimony, and conducting a “careful analysis of the 

time slips of Bowers Harrison’s attorneys and the time slips of AFP’s attorneys, 

as well as the trial transcript, the post-trial briefs and opinion, and the first 

appellate briefs and opinion,” the trial court entered detailed findings of fact 

and conclusions thereon awarding EMC $191,472.74 in attorney’s fees plus 

post-judgment interest of $82,128.69. Appellants’ App. at 10-36. The City now 

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appeals for a third time. We will provide additional facts in our discussion as 

necessary.

Discussion and Decision

[5] The sole issue presented for our review is whether the trial court abused its 

discretion in determining and calculating the amount of attorney’s fees 

recoverable by EMC as a result of its contempt claim against the City. We 

begin by reiterating our well-settled standard of review:

We review an award of attorney’s fees keeping in mind that a 

trial court is afforded broad discretion in awarding attorney’s fees 

and expenses. In light of that standard, we will only reverse a 

trial court’s decision when an abuse of discretion is apparent. A 

trial court has abused its discretion when its decision is clearly 

against the logic and effect of the facts and circumstances before 

it. 

EMC I, 954 N.E.2d at 1012-13 (citations omitted). On appeal, we neither 

reweigh the evidence nor judge the credibility of witnesses. In re Paternity of 

Pickett, 44 N.E.3d 756, 771 (Ind. Ct. App. 2015). We presume the trial court 

properly exercised its discretion in making its award and we will reverse only 

when “there is no evidence to support the award.” Witt v. Jay Petroleum, Inc., 

964 N.E.2d 198, 205 (Ind. 2012). 

[6] Additionally, at the City’s request, the trial court entered findings of fact and 

conclusions thereon pursuant to Indiana Trial Rule 52. Again, our standard of 

review is well settled.

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First, we determine whether the evidence supports the findings 

and second, whether the findings support the judgment. In 

deference to the trial court’s proximity to the issues, we disturb 

the judgment only where there is no evidence supporting the 

findings or the findings fail to support the judgment. We do not 

reweigh the evidence, but consider only the evidence favorable to 

the trial court’s judgment. Challengers must establish that the 

trial court’s findings are clearly erroneous. Findings are clearly 

erroneous when a review of the record leaves us firmly convinced 

a mistake has been made.

Estate of Kappel v. Kappel, 979 N.E.2d 642, 651-52 (Ind. Ct. App. 2012) (citations 

and quotation marks omitted).

[7] We observe that 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. EMC I, 954 N.E.2d at 1013. 

This compensation can include an award of attorney’s fees. Id. However, an

award of attorney’s fees is “appropriately limited to those fees 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’s fees bears the burden of proving an appropriate 

allocation of fees between issues for which attorney’s fees may be assessed and 

those for which they may not. Id. “‘While a perfect breakdown is neither 

realistic nor expected, a reasonable, good faith effort is anticipated.’” Id.

(quoting Shell Oil Co. v. Meyer, 684 N.E.2d 504, 525 (Ind. Ct. App. 1997), aff'd in 

relevant part, 705 N.E.2d 962, 981 (Ind. 1998)). Moreover, “[t]he trial judge 

possesses personal expertise that he or she may use when determining 

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reasonable attorney’s fees.” Weiss v. Harper, 803 N.E.2d 201, 208 (Ind. Ct. App. 

2003).

[8] In determining which attorney’s fees were incurred as a result of the City’s 

contempt and therefore recoverable by EMC, the trial court divided the time 

slips for EMC’s attorneys into three groups: (1) time slips relating to EMC’s 

claims for breach of contract, Open Door Law violations against the City, and 

the City’s breach of contract claims and constructive fraud claims; (2) time slips 

relating solely to the complaint for contempt; and (3) time slips relating to a 

combination of contempt and other legal issues. Appellants’ App. at 13. The 

parties agree with one another, and with the trial court, that no fees are 

recoverable from the first group of time slips and that all the fees are recoverable 

from the second group of time slips. Regarding the third group of time slips, 

the trial court determined that a percentage of those fees were incurred based on 

the City’s contempt and thus were recoverable by EMC. It is the trial court’s 

decision to award these fees that the City now challenges.

[9] In considering the third group of time slips, the trial court found in relevant 

part,

13. A percentage of the third group of Bowers Harrison and 

[AFP] time slips relating to a combination of contempt and other 

legal issues are included in the calculation of EMC’s attorney’s 

fees ... because precisely extricating just the contempt from these 

time slips requires an apportionment of the fees. These 

percentages are based off of a careful analysis of the trial 

transcripts [and] post-trial briefs[] and represent the percentage of 

documents that directly relate solely to EMC’s complaint for 

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contempt for each respective phase of the case. Recognizing the 

extent of the impracticality of requiring EMC and its attorneys to 

extricate and apportion fractions of each individual time slip as 

relating solely to the complaint for contempt (the time slips for 

which date back as long as seven years prior), this Court finds 

that the application of these percentages to the third group of 

time slips represents the most accurate and practical allocation of 

the attorney fees directly relating solely to the prosecution of 

EMC’s complaint for contempt. The Court finds that the 

allocated percentages of the documents directly relating solely to 

the complaint for contempt for each phase of the case is 

representative of the percentage of time EMC’s attorney’s [sic] 

spent working directly relating solely to the contempt issues, and 

therefore the application of these percentages to the attorney’s 

fees related to the time slips with combined legal issues for each 

respective phase accurately apportions EMC’s attorney’s fees 

related directly related solely to the prosecution of the complaint 

for contempt.

Id. at 14. 

[10] In determining the applicable percentages, the trial court analyzed the trial 

transcript and post-trial briefs, searching for eight “key terms” identified by 

EMC as terms solely related to its contempt claim.1

 Based upon its analysis, 

the trial court concluded that seventy-eight percent of the transcript pages

directly related to EMC’s contempt claim, and therefore seventy-eight percent 

of the fees incurred during the pretrial and trial period were recoverable. 

Similarly, the court concluded that thirty-two percent of the post-trial briefing

1 Those key terms were: contempt, Agreed Order, Consent Decree, December 1st, Hydrogen Sulfide, 

Damages, Environmental Protection Agency, and EPA. Appellants’ App. at 15. 

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pages directly related to EMC’s contempt claim, and therefore thirty-two 

percent of the fees incurred during the post-trial period were recoverable. Based 

upon these calculations, the trial court awarded EMC $191,472.74 in attorney’s 

fees.

[11] The City does not specifically challenge the trial court’s findings in this regard,

but argues that the trial court abused its discretion in awarding EMC any 

amount of fees from the third group of time slips and points to one sentence 

from EMC II which states, “We 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 contempt claim.” EMC II, 

slip op. at *6. The City focuses on the word “solely” in that sentence and 

complains that EMC proved that it incurred only $18,968 of attorney’s fees 

“solely” for the contempt claim because the time slips for those fee entries were 

the only ones that were specifically delineated with the term “contempt.” 

Appellants’ Br. at 7. Thus, the City argues, the trial court abused its discretion 

in awarding EMC any attorney’s fees other than those in the second group of 

time slips that were specifically delineated. 

[12] However, a single sentence or single word should not be taken out of context 

and read in isolation to lead to as restrictive of a result as the City suggests. 

Indeed, the City wholly ignores the specific holding of EMC I in which the 

Court stated that, “We remand to the trial court with instructions that the trial 

court modify its award of attorney’s fees to reflect only the amount EMC 

incurred in relation to its contempt Complaint.” EMC I, 954 N.E.2d at 1013 

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(emphasis added). This holding is consistent with the discussion in the body of 

EMC II, which provided that an award of attorney’s fees should be limited to 

fees incurred “as a result of” the contempt.” EMC II, slip op. at *4. Contrary to

the City’s assertions, the holdings in the prior appeals in this matter did not 

deprive the trial court of its considerable discretion to award any and all 

attorney’s fees incurred by EMC in relation to and as a result of the contempt 

claim. The trial court was specifically directed to calculate the amount of 

attorney’s fees incurred by EMC as a result of the contempt claim but to refrain 

from awarding EMC “blanket compensation” to include fees incurred as a 

result of the breach of contract claim. EMC I, 954 N.E.2d at 1013; EMC II, slip 

op. at *6. The trial court followed that directive by carefully analyzing the 

voluminous record to determine an accurate apportionment of EMC’s 

attorney’s fees from this third group of time slips between its contempt claim 

and its other claims for which attorney’s fees are not recoverable. The trial 

court’s extensive and detailed findings and conclusions reflect its thorough and 

thoughtful examination of the record. We commend the trial court for 

undertaking this daunting task.

[13] The City maintains that the “key terms” methodology proffered by EMC and 

applied by the trial court in determining the apportionment of attorney’s fees 

was arbitrary and unreasonable. However, recognizing the “impracticality” of 

extricating and apportioning fractions of each individual time slip as relating to 

the contempt, the trial court concluded in its considerable discretion that, under 

the specific circumstances presented in this complex litigation, application of 

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the key terms methodology to determine what percentages of the attorney’s fees 

were directly related to the contempt represented “the most accurate and 

practical” way to apportion fees. Appellants’ App. at 14. We will not secondguess this determination. The trial court sat through the evidence and the 

testimony and therefore possesses unique knowledge of the case and has 

personal expertise that places her in the best position to determine reasonable 

attorney’s fees. See Witt, 964 N.E.2d at 203 (observing considerable trial court 

discretion in both determining whether to find a party in contempt and in 

apportioning amount of attorney’s fees as sanction for contempt). Moreover, 

EMC was not required to submit an exact breakdown of its attorney’s fees, and 

we think that its submission of detailed affidavits explaining the use of the key 

terms methodology constituted a reasonable, good-faith effort to aid the trial 

court in properly allocating its attorney’s fees between issues for which 

attorney’s fees may be assessed and those for which they may not. We cannot 

say that the trial judge’s decision to apply this methodology in combination 

with her observing the trial was clearly against the logic and effect of the facts 

and circumstances before it.

[14] Based on the foregoing, we conclude that trial court did not abuse its discretion 

in determining and calculating the amount of attorney’s fees recoverable by 

EMC. The judgment of the trial court is affirmed in all respects.

[15] Affirmed.

Kirsch, J., and May, J., concur.

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