City of Gary v. Major



Attorney for Appellants                            Attorney for Appellees
Michael J. Rappa                                   Michael C. Dovellos
Johnson & Rappa, LLC                               Merrillville, Indiana
Merrillville, Indiana

____________________________________________________________________________
__

                                   In the
                            Indiana Supreme Court
                      _________________________________

                            No. 45S04-0401-CV-10

The City of Gary and Mayor Scott
KING, IN HIS OFFICIAL CAPACITY, AND THE
CITY OF GARY COMMON COUNCIL,
CONSISTING OF ROY PRATT, MARILYN
KRUSAS, ROBERT WHITE, MARY BROWN,
CAROLYN ROGER, JEROME PRINCE, ALEX
CHERRY, CHARLES HUGHES, AND KYLE
ALLEN, SR., IN THEIR OFFICIAL CAPACITY,
                                             APPELLANTS (DEFENDANTS BELOW),

                                     v.

Ronnie Major d/b/a Affordable Towing
and Associates, James Mako, Jr., d/b/a
Mako’s Towing, and Hewlin Major
d/b/a Hugh’s Towing,
                                             Appellees (Plaintifffs below).
                      _________________________________

 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

Rucker, Justice.
      The City of Gary, the Mayor of Gary, and  members  of  the  Gary  City
Council appeal a trial court finding of contempt and a  corresponding  award
of monetary damages.  We affirm the contempt finding but reverse  the  award
of damages.

                        Facts and Procedural History

      Over the veto of then Mayor Thomas V. Barnes, the legislative body  of
the City of  Gary,  the  Gary  City  Council  (“City  Council”),  passed  an
ordinance in 1989 concerning the award of  contracts  for  towing  illegally
parked vehicles.  The ordinance provided in pertinent part:   “In  order  to
facilitate the removal of vehicles or parts, the  City,  with  authorization
from  the  Common  Council  may  employ  personnel  and  acquire  equipment,
property and facilities and/or enter into towing contracts as necessary .  .
. .”  Appellants’ App. at 33.  Apparently a compromise was  reached  between
the legislative and executive branches of government and the  ordinance  lay
dormant for a number of years.  Then, in 2000, the City Council  established
a “Towing Committee”, a subcommittee of the City Council, that  assumed  the
responsibility of awarding  towing  contracts.   Before  the  Committee  was
established, Ronnie Major doing business as Affordable Towing &  Associates,
James Mako, Jr. doing business as Mako’s  Towing,  and  Hewlin  Major  doing
business as Hugh’s Towing (“Towing Companies”) had  been  performing  towing
services under contracts negotiated with the executive branch  of  the  City
of Gary.  After the Committee was established  the  City  Council  cancelled
existing contracts with  various  private  tow  truck  operators,  including
those of the Towing Companies, and awarded the  towing  contracts  to  other
businesses.

      On September 7, 2000, the  Towing  Companies  filed  a  complaint  for
declaratory and injunctive relief against the City of Gary,  Scott  King—the
Mayor  of  Gary—and  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.[1]   More
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 court’s order also declared:

           [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 court’s order provided, “[t]his cause shall be set for hearing  on
the issue of whether or not the Plaintiff’s [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 court’s 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  Gary’s  administrative
           policy regarding the oversight of the licensing and  conduct  of
           towing businesses in the City of Gary shall be as follows:

           1.  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.


           2. 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.  See City  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 court’s judgment.

                                 Discussion
                                     I.

      Indiana Code § 34-47-3-1 provides in relevant part: “A person  who  is
guilty of any willful disobedience of any process,  or  any  order  lawfully
issued: (1) by any court of record . . . is guilty of an  indirect  contempt
of  the  court  that  issued  the  process  or  order”   (emphasis   added).
Consistent with this statutory provision, our courts  have  long  held  that
“[i]ndirect contempt is the willful disobedience  of  any  lawfully  entered
court order of which the  offender  has  notice.”   Andrews  v.  State,  505
N.E.2d 815, 830 (Ind. Ct. App. 1987) (emphasis added) (citing I.C. § 34-4-7-
3, the predecessor to I.C. § 34-47-3-1).  See  also  Mitchell  v.  Mitchell,
785 N.E.2d 1194, 1198 (Ind. Ct. App. 2003);  Packer  v.  State,  777  N.E.2d
733, 738 (Ind. Ct. App. 2002); Macintosh v. Macintosh, 749 N.E.2d  626,  629
(Ind. Ct. App. 2001), trans. denied; Myer v. Wolvos, 707 N.E.2d  1029,  1031
(Ind. Ct. App. 1999), trans. denied; Hanson v. Spolnik, 685  N.E.2d  71,  82
(Ind. Ct. App. 1997), trans. denied.  In this case, according to  the  Court
of  Appeals,  the  trial  court’s  order  was  not  “lawfully  entered”  and
consequently not enforceable by means of contempt.  This was so because  the
City had no duty to “establish  a  fair  and  equitable  procedure  for  the
bidding and awarding of towing contracts.”  Major, 792 N.E.2d at  966.   Our
understanding of a “lawfully entered” order in the  context  of  a  contempt
finding is slightly different from that of our colleagues.

      In general, contempt of court involves disobedience of a  court  which
undermines the court’s authority, justice, and dignity.  Hopping  v.  State,
637 N.E.2d 1294, 1297  (Ind.  1994).   But  the  authority  of  a  court  to
sanction a party  for  contempt  is  not  a  matter  of  legislative  grace.
Rather, among the inherent powers of a court  is  that  of  maintaining  its
dignity, securing obedience to its process and rules, rebuking  interference
with the conduct of business, and punishing  unseemly  behavior.   State  v.
Shumaker, 200 Ind. 623, 157 N.E. 769, 775 (1927). Viewed in this light,  the
statutory  definition  of  indirect  contempt  is   merely   a   legislative
recognition of our courts’ inherent power to cite and punish  for  contempt.
See In re Contempt of Crenshaw, 708 N.E.2d 859, 861  (Ind.  1999);  Skolnick
v. State, 180 Ind. App. 253, 388 N.E.2d 1156, 1162 (1979).

      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 order’s 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 party’s  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.[2]   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 court’s 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 court’s order.

                                     II.

      The City contends the trial court abused its  discretion  in  entering
its order of contempt.  The City’s argument in this regard is  not  entirely
consistent.  On the one hand the City argues that the order  was  vague  and
unclear, and thus the City did not know what was expected  of  it.   On  the
other hand the City argues the Mayor’s executive order did exactly what  the
court ordered (thus undermining the assertion that the City was  unaware  of
what it was ordered to do).

      In order to be held in contempt for  failure  to  follow  the  court’s
order, a party must have willfully disobeyed the  court  order.   Ind.  High
School Athletic Ass’n 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. Dep’t 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 court’s finding of contempt  only  if  there  is  no
evidence or inference therefrom to support the finding.  Id.


      In this case the trial court’s 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 City’s 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  Mayor’s
executive order represented compliance with the trial  court’s  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 court’s  order  of  January
17, 2001, the Mayor’s executive order fell far short of compliance with  the
trial court’s order.  Indeed a review of  the  hearing  transcript  and  the
City’s brief reveals that the heart of the City’s argument was not  so  much
that the executive order complied with  the  trial  court’s  directive,  but
rather the  City  addressed  the  underlying  justification  for  the  trial
court’s 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,[3] 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 Mayor—this  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.   There’s  nothing
in this Executive Order No. 4 that says that  he’s  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 court’s order of  January  17,  2001  was  the  Mayor’s  executive
order.  This was not sufficient.  The trial court therefore  did  not  abuse
its discretion in finding the City in  contempt  of  court.[4]   We  have  a
different view however on the question of damages.


                                    III.

      Once a party has been found in contempt of court, monetary damages may
be awarded to compensate the other party for injuries incurred as  a  result
of the contempt.  Cowart v. White, 711 N.E.2d  523,  532  (Ind.  1999).   In
determining an amount of damages the trial court may take into account  “the
inconvenience and frustration suffered by the aggrieved party . . . .”   Id.
at 532 (quoting Thomas v. Woollen, 255 Ind. 612, 266 N.E.2d 20, 22  (1971)).
 The determination of damages in a contempt proceeding is within  the  trial
court’s discretion, and we will reverse an award of damages  only  if  there
is no evidence to support the award.  Meade  v.  Levett,  671  N.E.2d  1172,
1181 (Ind. Ct. App. 1996).


      The trial court awarded the Towing Companies $150,000 in  damages  for
the City’s contemptuous conduct.  The City complains the trial court  abused
its discretion in doing so  because  there  was  no  evidence  submitted  to
support the award.


      The record shows  that  in  their  motion  for  contempt,  the  Towing
Companies  sought  damages  in  the  amount  of  $150,000.   No   supporting
documents were included with the motion to justify damages  in  any  amount.
And at the contempt hearing, no evidence was introduced or argument made  to
support an award of damages.  Rather, the written order finding the City  in
contempt declared, “[t]here being no argument presented  by  the  Defendants
to contradict the damages requested, the Court now  orders  damages  in  the
amount of $150,000.00.”  Appellants’ App. at 10.


      We disagree with the trial court on this point.  The City’s 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 City’s contemptuous conduct, there was simply no basis  to  enter  an
award of damages.  On  this  issue  the  judgment  of  the  trial  court  is
reversed.[5]




                                 Conclusion


      The judgment of the trial court is affirmed in part  and  reversed  in
part.  This cause is remanded for further proceedings not inconsistent  with
this opinion.


Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.

-----------------------
[1] As authority for this proposition, the Towing Companies relied on three
statutes, which read in pertinent part:


      The powers of a city are divided between the executive and legislative
      branches of its government.

Ind. Code § 36-4-4-2(a).

     a)  All  powers  and  duties  of  a  city  that   are   executive   or
        administrative in nature shall be exercised  or  performed  by  the
        city executive, another city officer, or a city department.
     b) An ordinance of the city legislative body requiring an executive or
        administrative function to be performed may:
        (1)  Designate the department that is to perform that function .  .
      . .

I.C. § 36-4-4-3.

      The legislative power of a city is vested  in  its  legislative  body.
      All powers and duties of a city that are legislative in  nature  shall
      be exercised or performed by its legislative body.


I.C. § 36-4-4-4(a).

[2] Responding to  the  Towing  Companies’  complaint  for  declaratory  and
injunctive relief, the City filed a motion to dismiss  under  Indiana  Trial
Rule 12(B)(6), which the trial court denied.  In its  supporting  memorandum
the City argued, among other things, that pursuant to Indiana  Code  section
36-4-4-5 this cause should be heard by the Lake Superior  Court  sitting  en
banc.  The Statute provides in pertinent part:

           (a) If uncertainty exists or a  dispute  arises  concerning  the
           executive or legislative nature of a power or duty exercised  or
           proposed to be exercised by a branch,  officer,  department,  or
           agency of the government of a municipality, a  petition  may  be
           filed  in  the  circuit  court  of  the  county  in  which   the
           municipality is located by . . .  any  person  who  alleges  and
           establishes to the satisfaction of the court that he is or would
           be adversely affected by the exercise of the power; however,  in
           a county having a superior court that  has  three  (3)  or  more
           judges, the petition shall be filed in the  superior  court  and
           shall be heard and determined by the court sitting en banc.

      Although the City did not say so in express terms, its argument  could
be viewed as a challenge to the trial court’s jurisdiction.  However,  after
receiving an adverse ruling on its motion  to  dismiss,  the  City  did  not
advance this argument any further.  We express no view on the merits of  the
City’s now apparently abandoned claim.
[3] We do not resolve in this opinion whether, as a matter of law,  awarding
municipal contracts is an executive versus a legislative  function.   We  do
observe however that the long established rule in this jurisdiction is  that
municipal officers have no  power  to  enter  contracts  except  where  that
authority is expressly granted  by  statute;  and  municipal  officers  must
pursue and exercise such  authority  in  strict  compliance  with  the  mode
prescribed by statute.  Contracts made by  officers  without  following  the
prescribed mode are void and unenforceable.  Bd. of Commissioners  of  Henry
County v. Gilles, 138 Ind. 667, 38 N.E. 40, 42 (1894); State ex  rel.  Keith
v. Common Council of Michigan  City,  138  Ind.  455,  37  N.E.  1041,  1044
(1894); Platter v. Bd. of Commissioners of Elkhart County, 103 Ind.  360,  2
N.E. 544, 554 (1885).

[4] We observe that the trial court actually found the  “Defendants”  to  be
in contempt.  Appellants’ App.  at  10.   However,  as  a  purely  technical
matter, no named defendant was ordered by the trial court  to  do  anything.
And that is especially so with regard to the City Council and  its  members.
Rather, it was the   “Executive Branch” of government which the trial  court
ordered to  establish  a  fair  and  equitable  procedure  for  bidding  and
awarding towing contracts.  Id. at 25.  Mayor Scott King,  as  head  of  the
executive branch of government in  the  City  of  Gary,  is  thus  the  only
defendant to whom the trial court’s contempt finding applied.
[5] We express no opinion on whether the Towing Companies are entitled to
damages on their original complaint.  That issue is not before us.