Attorney for Appellants Attorney for Appellees
Michael J. Rappa Michael C. Dovellos
Johnson & Rappa, LLC Merrillville, Indiana
Appeal from the Lake Superior Court, Room Number Three, No. 45D03-0009-CP-2366
The Honorable James D. Danikolas, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 45A04-0207-CV-357
February 10, 2005
On September 7, 2000, the Towing Companies filed a complaint for declaratory and
injunctive relief against the City of Gary, Scott Kingthe Mayor of Garyand members
of the Gary City Council (referred to collectively as City). Alleging damages
in the amount of $100,000 for each plaintiff, the complaint sought a declaration
that the towing ordinance violated an alleged statutory separation of powers.
specifically, according to the complaint, entering contracts on behalf of a municipality is
a function of the executive rather than the legislative branch of city government.
After conducting a hearing, the trial court agreed with the Towing Companies
and entered an order on January 17, 2001 declaring null and void all
towing contracts entered by the City Council. The trial courts order also
[T]he Executive Branch of Government of the City of Gary is hereby ordered to establish a fair and equitable procedure for the bidding and awarding of towing contracts to qualified towing entities for the police ordered towing of vehicles in the City of Gary with in [sic] which the [Towing Companies] shall participate.
Appellants App. at 25. As for the Towing Companies request for damages, the trial courts order provided, [t]his cause shall be set for hearing on the issue of whether or not the Plaintiffs [sic] are entitled to damages because of the illegal and unlawful actions of the City of Gary Council Towing Committee. . . . Id. at 24-25. Apparently no such hearing was ever conducted and the City did not appeal the trial courts order.
Several months later, contending that the City had refused to comply with the
order, the Towing Companies filed a motion to find the City in contempt
of court and also asked the trial court to impose damages for contempt
in the amount of $150,000. While the contempt action was pending, the
Mayor of Gary issued an executive order that provided in pertinent part:
Effective November 1, 2001 the City of Garys administrative policy regarding the oversight of the licensing and conduct of towing businesses in the City of Gary shall be as follows:
Oversight of the licensing and the conduct of towing businesses within the City of Gary shall be conducted by the designated Chairman of the Towing Committee as established by ordinance of the Gary Common Council.
Said Chairman shall report in writing to the Office of the Mayor on
a quarterly basis commencing January 1, 2002 as to the status of such
licensing and conduct of said businesses.
Id. at 67. After a hearing on June 12, 2002, the trial
court found the City in contempt and ordered the City to pay the
Towing Companies $150,000 in damages.
The City appealed arguing in part: (i) the trial court should not have
found it in contempt because the order of January 17, 2001 was unclear
and thus the City was not in willful disobedience of the order, and
(ii) the trial court erred in awarding damages because no evidence was introduced
to support the award. Finding the January 17, 2001 order unlawful, the
Court of Appeals reversed the judgment of the trial court.
of Gary v. Major, 792 N.E.2d 962 (Ind. Ct. App. 2003). Having
previously granted the Towing Companies petition to transfer, we now affirm in part
and reverse in part the trial courts judgment.
The law in Indiana is well settled that a person cannot be held
in contempt of court for failure to obey an order if the issuing
court had no jurisdiction to give the order. State ex rel. Leffingwell
v. Super. Ct. No. 2 of Grant County, 262 Ind. 574, 321 N.E.2d
568, 576 (1974). Such an order is void and unenforceable. See,
e.g., State ex rel. Taylor v. Cir. Ct. of Marion County, 240 Ind.
94, 162 N.E.2d 90, 92 (1959) (order declaring striking workers in contempt of
court void and unenforceable because a specific statutory provision declared trial courts lack
jurisdiction to issue a restraining order involving a labor dispute). However, an
order that is void because the court lacks jurisdiction to enter it is
distinguished from an order that is otherwise invalid. Thus, [a]lthough a defendant
cannot be held in contempt of a void order, a defendant may be
held in contempt of an erroneous order . . . . Accordingly,
a defendant may not challenge a contempt finding based upon the prior orders
non-jurisdictional irregularities. A party must follow an erroneous order. The only
remedy from an erroneous order is appeal and disobedience thereto is contempt.
Carson v. Ross, 509 N.E.2d 239, 243 (Ind. Ct. App. 1987) (citations omitted),
trans. denied; accord Crowl v. Berryhill, 678 N.E.2d 828, 830 (Ind. Ct. App.
1997) (A partys remedy for an erroneous order is appeal and disobedience of
the order is contempt.).
Jurisdiction is comprised of three elements: (1) jurisdiction of the subject matter; (2) jurisdiction of the person; and (3) jurisdiction of the particular case. Troxel v. Troxel, 737 N.E.2d 745, 749 (Ind. 2000). In our view an order is not lawfully entered in the context of a contempt finding only where the court lacks one of these three elements. Neither before the Court of Appeals nor before this Court has the City alleged the trial court lacked jurisdiction to enter its order of January 2001. See footnote At most, the order was erroneous. However, [t]he only remedy from an erroneous order is appeal . . . . Carson, 509 N.E.2d at 243. We emphasize that the City did not appeal the trial courts original order of January 17 and so we are not presented with any question about the merits of the order or whether it was correct. The only issue is whether there was sufficient evidence before the trial court to demonstrate that the City was in willful disobedience of the trial courts order.
In order to be held in contempt for failure to follow the courts
order, a party must have willfully disobeyed the court order.
School Athletic Assn v. Martin, 765 N.E.2d 1238, 1241 (Ind. 2002). The
order must have been so clear and certain that there could be no
question as to what the party must do, or not do, and so
there could be no question regarding whether the order is violated. Id.
A party may not be held in contempt for failing to comply
with an ambiguous or indefinite order. Otherwise, a party could be held
in contempt for obeying an ambiguous order in good faith. Bowyer v.
Ind. Dept of Natural Resources, 798 N.E.2d 912, 918 (Ind. Ct. App. 2003).
The determination of whether a party is in contempt of court is
a matter left to the discretion of the trial court. Hancz v.
City of South Bend, 691 N.E.2d 1322, 1324 (Ind. Ct. App. 1998).
We will reverse a trial courts finding of contempt only if there is
no evidence or inference therefrom to support the finding. Id.
In this case the trial courts order required the executive branch of government
of the City of Gary to establish a fair and equitable procedure for
the bidding and awarding of towing contracts to qualified towing entities for the
police ordered towing of vehicles in the City of Gary with in [sic]
which the [Towing Companies] shall participate. Appellants App. at 25. Contrary
to the Citys contention, the order appears to us to be decidedly unambiguous.
The language is direct, declarative, and includes no conflicting terms or provisions.
In fact at the contempt hearing the City made no assertion that
the order was unclear or that it did not know what the order
required it to do. Rather, the City argued that the Mayors executive
order represented compliance with the trial courts order. See Tr. at 5-8.
The City made this same claim before the Court of Appeals.
See Br. of Appellants at 7-8.
Although apparently motivated by the trial courts order of January 17, 2001, the
Mayors executive order fell far short of compliance with the trial courts order.
Indeed a review of the hearing transcript and the Citys brief reveals
that the heart of the Citys argument was not so much that the
executive order complied with the trial courts directive, but rather the City addressed
the underlying justification for the trial courts order, namely: that the authority to
award contracts was an executive function rather than a legislative one. Apparently
conceding that this was an executive function,
the City argued, for example:
The Executive Order established a valid and legal process for the awarding of towing contracts within the City of Gary, in which the the [sic] power to enter into towing contracts remained with the Executive Branch of the City of Gary, and did not violate the Indiana Statutes with regard to the separation of powers. The Executive Order made clear that the authority to enter into towing contracts rests with the Mayorthis authority has not been delegated to the Common Council or the Towing Committee.
Id. at 5. The City also argued, [T]he executive order makes clear that the authority to make a contract is still with the mayor. Theres nothing in this Executive Order No. 4 that says that hes going to delegate the contracting authority to the council. Tr. at 5-6.
These arguments miss the mark. It is not enough to say that
the Mayor of Gary has retained and not delegated an executive branch function.
Rather, the question is whether the executive branch of the government of
the City of Gary establish[ed] a fair and equitable procedure for the bidding
and awarding of towing contracts as ordered by the trial court. Clearly
it did not, and the City makes no credible claim to the contrary.
The only evidence the City presented to demonstrate compliance with the trial courts
order of January 17, 2001 was the Mayors executive order. This was
not sufficient. The trial court therefore did not abuse its discretion in
finding the City in contempt of court.
We have a different view
however on the question of damages.
We disagree with the trial court on this point. The Citys silence
on the question of damages is of no moment. Absent some evidence
in the record demonstrating that the Towing Companies suffered injury as a result
of the Citys contemptuous conduct, there was simply no basis to enter an
award of damages. On this issue the judgment of the trial court