BROWN, Judge.
This is a consolidated appeal from various proceedings in which the West Boggs Sewer District ("West Boggs") brought complaints against Terry and Laura Wagler ("Terry & Laura"), Larry and Jennifer Wagler ("Larry & Jennifer"), and Norman Wagler (collectively, the "Waglers"), as well as Janet and Nathan Wagler ("Janet & Nathan," and together with the Waglers, the "Appellants"),
Additionally, West Boggs appeals the trial court's denial of its requests for an award of attorney fees and costs against each party that filed an Ind. Trial Rule 60(B) motion, and it requests that we award it appellate attorney fees against each of the Appellants. We affirm.
West Boggs, a not-for-profit utility, installed sanitary sewer infrastructure (the "Sewer System") adjacent to parcels of property owned by the Appellants, who are members of an Old Order Amish community in Loogootee, Indiana.
Norman's Appendix at 106; Janet & Nathan's Appendix at 85.
On March 2, 2009, Marilyn A. Hartman entered appearances on behalf of both Norman and Janet & Nathan and requested an extension of time to answer the complaint, which was granted. On April 2, 2009, both Norman and Janet & Nathan filed answers and motions for change of venue from the judge, and on April 14, 2009, the court granted their motions. The court directed that the defendants were to strike first from a panel of three
Also, on December 2, 2009, West Boggs initiated contact with Terry & Laura and Larry & Jennifer by sending letters by certified mail making statements similar to the previous letters and specifically stating that West Boggs "is hereby formally notifying you that the system is operational and that
On January 20, 2011, Terry & Laura and West Boggs appeared and West Boggs requested that the hearing be vacated as the parties had reached an agreement. On January 21, 2011, the court issued an agreed entry and judgment signed by Hartman on behalf of Terry & Laura wherein they were ordered to connect to the Sewer System, and it laid out the specific steps and applicable time frame they were to follow in doing so, including obtaining an estimate on installing a grinder pump within fifteen days of the entry of the judgment and having a fully operational and functional connection within ninety days. On March 2, 2011, the court issued an agreed entry and judgment signed by Hartman on behalf of Larry & Jennifer which was substantially similar to Terry & Laura's agreed entry.
On April 13, 2011, West Boggs filed verified motions for rule to show cause against both Terry & Laura and Larry & Jennifer in which it stated that "since the entry of the judgment, Defendants have wholly failed to comply with the terms thereof" and asked the court "to order the Defendants to appear and show cause why they should not be held in contempt for their failure to comply," and requested hearings and attorney fees on their motions. Volume I Appendix at 5, 79-80; Volume II Appendix at 142, 218-219. On April 25, 2011, Attorney Dale W. Arnett filed appearances on behalf of each couple, and on April 28, 2011, Hartman filed motions to withdraw in each action which the court granted. On May 12, 2011, each couple filed identical motions to set aside judgment pursuant to Ind. Trial Rule 60(B)(8), relying upon the First Amendment and Article 1, Sections 2 and 3 of the Indiana Constitution and specifically arguing that "[t]he Defendants are Amish, and historically the Amish have believed they are a peculiar people and should be living separate and apart from the outside world the best that they can," that "[a]s such, they have rejected public utilities including electricity from the power grid," and that "[b]oth the use of the electricity from the public grid and being on a `public utility' sewer infringe upon the Amish way of life and sincerely held religious beliefs." Volume I Appendix at 71-72; Volume II Appendix at 209-210. They argued in their
On June 9, 2011, West Boggs filed responses to the couples' motions and requests for attorney fees. On August 1, 2011, the court held a consolidated hearing on the show cause motions and the motions to set aside in which the following colloquy occurred between Larry Wagler and Attorney Arnett:
August 1, 2011 Transcript at 42-43. At the conclusion of the hearing, the court asked the defendant couples to prepare a supplemental brief addressing whether an agreed entry may be set aside pursuant to Ind. Trial Rule 60(B) which were submitted on August 26, 2011.
On September 6, 2011, the court issued an Order on Trial Rule 60(B) Motion denying the motions to set aside and stating in part:
Volume I Appendix at 45-46; Volume II Appendix at 183-184.
In West Boggs' action against Norman, the court set a trial date for October 19, 2010, which was continued until February 25, 2011. On February 17, 2011, Attorney Hartman withdrew from her representation of Norman. On February 25, 2011, in advance of trial, the parties advised the court that they had reached an agreement, and the court vacated the hearing. On March 1, 2011, the court entered an Agreed Entry and Judgment in Norman's case which was signed by Norman and which was substantially similar to the other agreed entry and judgments.
On April 13, 2011, the same day it filed similar motions against Terry & Laura and Larry & Jennifer, West Boggs filed a verified motion for rule to show cause against Norman which was substantially similar to the other show cause motions. On April 25, 2011, Attorney Dale W. Arnett filed an appearance. On May 12, 2011, Norman filed a motion to set aside pursuant to Ind. Trial Rule 60(B), and on June 9, 2011, West Boggs filed its response to Norman's Rule 60(B) motion to set aside judgment and request for attorney fees.
After multiple continuances were filed by Norman and granted by the court, on September 16, 2011 the court held a hearing on West Boggs' motion for rule to show cause and Norman's motion to set aside. On October 7, 2011, the court issued orders concerning each motion.
Norman's Appendix at 13-14. The court also denied Norman's 60(B) motion, noting that it was "premised upon his allegation that he signed the Agreed Judgment under the mistaken belief that he had no further defense to the lawsuit" but that "[h]e now claims that the First Amendment to the U.S. Constitution and Article 1 Sections 2 and 3 of the Indiana Constitution provide him with a defense" because "he is a member of the Old Order Amish Church and that the tenets of the church prohibit its members from using electricity," but that "[e]ven if [Norman] had shown a mistake or other reason justifying relief from the operation of the judgment, [he] would still have to prove a meritorious defense" and "has not done so." Id. at 16.
Regarding West Boggs' action against Janet & Nathan, on April 12, 2011, the court set a trial date of August 19, 2011. On April 13, 2011, Attorney Arnett entered an appearance on their behalf, and on April 18, 2011, Attorney Hartman withdrew her representation of them. Janet & Nathan requested a continuance which was granted, and a bench trial was set for September 16, 2011. In advance of the hearing, on September 12, 2011, Janet & Nathan filed a motion to dismiss. On September 16, 2011, the court denied the motion to dismiss and held a bench trial. On October 6, 2011, the court issued its entry and judgment finding that West Boggs satisfied the requirements found in Ind. Code § 8-1-2-125(d), and it ordered Janet & Nathan to connect to the Sewer System, specifically ordering that they contact West Boggs within ten days of the judgment to make such arrangements and that their connection be fully operational within 120 days, among other things.
Notices of appeal were timely filed in each matter, and on May 4, 2012, this court granted West Boggs' motion to consolidate appeals and consolidated the matters under Cause No. 14A01-1109-Pl-427.
The first issue is whether the court abused its discretion by denying the Waglers' Ind. Trial Rule 60(B) motions for relief from judgment. A grant of equitable relief under Ind. Trial Rule 60 is within the discretion of the trial court. We review a trial court's ruling on Rule 60 motions for abuse of discretion. Outback Steakhouse of Fla., Inc. v. Markley, 856 N.E.2d 65, 72 (Ind.2006). "An abuse of discretion occurs when the trial court's judgment is clearly against the logic and effect of the facts and inferences supporting the judgment for relief." Ford Motor Co. v. Ammerman, 705 N.E.2d 539, 558 (Ind.Ct.App.1999), reh'g denied, trans. denied, cert. denied, 529 U.S. 1021, 120 S.Ct. 1424, 146 L.Ed.2d 315 (2000). When reviewing the trial court's determination, we will not reweigh the evidence. Zwiebel v. Zwiebel, 689 N.E.2d 746, 748 (Ind.Ct.App. 1997), reh'g denied, trans. denied.
Ind. Trial Rule 60(B) "affords relief in extraordinary circumstances which are not the result of any fault or negligence on
The Waglers argue that the agreed entry and judgments filed in each of their cases should be set aside pursuant to Ind. Trial Rule 60(B)(8), which provides:
Also, with respect to Trial Rule 60(B)(8)'s requirement that the movant establish a meritorious claim or defense, we observe that a meritorious defense for the purposes of Rule 60(B) is "one that would lead to a different result if the case were tried on the merits." Butler v. State, 933 N.E.2d 33, 36 (Ind.Ct.App.2010) (quoting Bunch v. Himm, 879 N.E.2d 632, 637 (Ind. Ct.App.2008)). "Absolute proof of the defense is not necessary, but there must be `enough admissible evidence to make a prima facie showing' that `the judgment would change and that the defaulted party would suffer an injustice if the judgment were allowed to stand.'" Id. (quoting Bunch, 879 N.E.2d at 637).
"The trial court's residual powers under subsection (8) may only be invoked upon a showing of exceptional circumstances justifying extraordinary relief." Brimhall v. Brewster, 864 N.E.2d 1148, 1153 (Ind.Ct. App.2007), trans. denied (citation omitted). "Among other things, exceptional circumstances do not include mistake, surprise, or excusable neglect, which are set out in [Ind. Trial Rule] 60(B)(1)." This court has explained:
Id. (citation and quotation marks omitted).
The Waglers argue that, even though they "eventually authorized their attorney to sign an agreed entry by which they would connect," they "did not want to give in, felt coerced to assent to the agreement
The Waglers suggest that certain contract doctrines apply. First, the Waglers appear to argue that they were under duress when they entered into the agreed entries, arguing that "Larry Wagler stated in giving consent, it was like having a gun to his head, because he was told he had to succumb to the wishes of West Boggs and had no other choice," that Norman "did not willfully sign the agreement, he didn't want to sign it, he would have felt forced to go to court and the Amish try to avoid court," and that in both cases "[s]uch duress cannot legitimize a contract." Cause No. 121/122 Brief at 6; Norman's Brief at 6. The Waglers also argue that the doctrines of unconscionability or impossibility apply because the agreed entries are "contrary to 42 USC 2000cc,[
Regarding the merits of the Waglers' contentions, West Boggs argues that "[t]he Waglers' request to avoid their Agreed Judgments has been rejected by over a century of Indiana case law," and indeed "[t]his Court has time and again confirmed that `T.R. 60(B) is inapplicable to the modification of a pre-existing agreed judgment agreed to by the parties to that judgment,'" noting also that the Waglers concede as much in their briefs. Appellee's Brief at 15-16 (quoting State ex rel. Prosser v. Ind. Waste Sys., Inc., 603 N.E.2d 181, 186 (Ind.Ct.App.1992)). West Boggs argues that to the extent this court, notably in the recent case of Evans v. Evans, has relied upon Ind. Trial Rule 60(B) to modify agreed judgments, "[e]ven assuming Evans could be read as upholding an agreed judgment modification, it still at best only reconfirms that such a judgment may be clarified to avoid a legal impossibility" and that "the Waglers are not merely seeking a clarification to their Agreed Judgments, but are asking to set them aside entirely and reopen the proceedings altogether." Id. at 17.
West Boggs also argues that the Waglers waived their contractual arguments because the arguments raised in their motions to set aside were confined to "their religious argument," that similarly "in their argument to the trial court at the August hearing, the Waglers only argued religious grounds," and that "[n]ot until after evidence was taken at the hearing did the Waglers raise their contractual claims, for the first time," in a brief submitted
The Waglers filed two reply briefs — one corresponding with Cause Numbers 121 and 122 and one on behalf of Norman and Janet & Nathan. In the former, the Waglers respond to West Boggs' waiver argument by noting that "[t]his writer was taught in law school and appellate seminars that if you once cite Facts and the Statement of the Case to the record, that thereafter for ease of reading to the Appellate tribunal, those citations need not be repeated in the argument section." Cause No. 121/122 Reply Brief at 2. The Waglers note:
Id. at 2-3. The Waglers also acknowledge that they omitted "two case citations on page 6 of their brief" and include the relevant citations, and they provide a pinpoint citation to a cited case. Id. at 3. Regarding the contract issues, the Waglers argue that "West Boggs brought up the issue in their response to the Rule 60 B motion" and thus they "cannot bring forth an issue, listen to evidence on the issue at trial and then claim the issue is not properly before this court. Id. at 4.
Initially, we note that we are inclined to agree with West Boggs that the Waglers' briefs fall short of the requirements outlined by the Indiana Rules of Appellate Procedure, and we agree in particular with West Boggs' characterization of the Waglers' briefs as being mostly composed of "abstract legal propositions without any cogent reasoning, explanation, or application." Thus, to the extent that the Waglers present arguments which are not cogent, we find those arguments to be waived. See Masonic Temple Ass'n of Crawfordsville v. Ind. Farmers Mut. Ins., 837 N.E.2d 1032, 1037 (Ind.Ct.App.2005) (noting that "[a]n appellant's argument must contain his contentions on the issues presented, supported by cogent reasoning, and each contention must be supported by citations to the authorities, statutes, and the appendix or parts of the record relied on" and that "[a] party waives any issue for which it fails to provide argument and citations") (citing Ind. Appellate Rule 46(A)(8)(a)), reh'g denied; see also Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind.Ct.App.2002) (holding argument waived for failure to cite authority or provide
Waiver notwithstanding, we observe that it is a "well-known legal premise that `[a]fter entering an agreed judgment, the trial court has no authority to modify or change the judgment in any essential or material manner.'" Evans v. Evans, 946 N.E.2d 1200, 1204 (Ind.Ct.App.2011) (quoting Mitchell v. Stevenson, 677 N.E.2d 551, 565 (Ind.Ct.App.1997), trans. denied); see also Ryan v. Ryan, 972 N.E.2d 359, 362 (Ind.2012) (noting that the property settlement agreement incorporated into a dissolution decree was grounded in contract law which "is economic in nature — an ordinary contract. As with other contracts, a division of property may only be modified according to the terms of the agreement, if the parties' [sic] consent, or if fraud or duress occurs") (quoting Snow v. England, 862 N.E.2d 664, 668 (Ind.2007)) (citation omitted); Ind. Waste Sys., 603 N.E.2d at 186 n. 8 ("A judgment entered by consent which does not require the Court's continuing supervision of any changing conduct or conditions may not be altered or modified by the Court in any material manner, absent a showing by [the movant] of fraud, mistake or other contractual ground for modification.") (emphasis added).
However, here the Waglers are not requesting a modification of the agreed entry and judgments entered into; rather, the Waglers are requesting that, pursuant to Ind. Trial Rule 60(B)(8), this court relieve them from the judgments by setting them aside in their entirety, arguing that they have demonstrated "exceptional circumstances justifying extraordinary relief." Brimhall, 864 N.E.2d at 1153. Indeed, contrary to the position taken by West Boggs and the corresponding concession made by the Waglers, there are examples in Indiana case law in which Subsection 8 has been used in such a way. In In re Paternity of T.G.T., mother and father, who were not married, conceived a child, and during the pregnancy father's sister arranged for them to meet with an attorney to establish father's paternity. 803 N.E.2d 1225, 1226 (Ind.Ct.App.2004), reh'g denied, trans. denied. At the meeting, the attorney advised mother that he represented father and that if she wanted an attorney she should hire one, but mother did not do so. Id. The attorney prepared a joint petition to establish paternity "which included a request that the trial court enter an order regarding custody, visitation rights, and child support after the child was born," and he filed the petition, an appearance form on behalf of father, and a notice of hearing. Id. The hearing was continued and never rescheduled, and the attorney "prepared a `Judgment Entry' establishing Father's paternity, stating that the parties would share joint custody of their unborn child and that Father would have primary physical custody. In addition, the parties agreed to `share equally the financial responsibility for the care of the unborn child.'" Id. The proposed judgment indicated that the attorney was representing father and that mother was pro se. Id. Mother and father signed their names and indicated that they "read and agreed to" the terms of the proposed judgment, and on September 23, 2002, the court signed the judgment. Id. The court's order did not address child support or visitation, and Mother was not served with a copy of the judgment. Id. The child was born in October 2002, mother and father ceased living together in March 2003, and mother filed a motion for relief from judgment under Trial Rule 60(B)(1), (3), and (8). Id. The trial court denied mother's motion. Id.
On appeal, we analyzed mother's claim under Ind. Trial Rule 60(B)(8), noting at the outset:
Id. at 1227.
This court noted that the trial court, in denying mother's motion, "found that while it `did not strictly comply with the statutory framework cited by the Mother, the Joint Petition to Establish Paternity... and the Judgment Entry ... substantially comply with the requirements of I.C. 31-14-10-3 and Trial Rule 58.'" Id. We disagreed, noting that certain statutory provisions were not followed and that accordingly the court was not authorized to enter judgment without first holding a hearing as required by Ind.Code § 31-14-10-1. Id. at 1227-1228. This court also highlighted that the record did not indicate that the court considered the best interests of the child pursuant to Ind.Code § 31-14-13-2 and that "it is the duty of the trial court to determine if any agreement is in the best interests of the child." hi at 1228 (emphasis omitted). We granted relief under Trial Rule 60(B)(8), holding that the trial court's "failure to comply with the relevant statutory scheme" was great and that accordingly, "under all the circumstances," relief from judgment was clearly demonstrated.
As noted above, the Waglers, in an attempt to demonstrate that exceptional circumstances justifying extraordinary relief are present in their cases, suggest a number of reasons, most of which are grounded in contract law. To the extent that the Waglers suggest that the agreed entry and judgments were a product of duress, we note that the Waglers state in the Cause No. 121/122 brief that "Larry Wagler stated in giving consent, it was like having a gun to his head, because he was told he had to succumb to the wishes of West Boggs and had no other choice." Cause No. 121/122 Brief at 6. Also, Norman's brief notes that he testified that "in giving consent, he did not willfully sign the agreement, he didn't want to sign it, he would have felt forced to go to court and the Amish try to avoid court," and again that "[h]e didn't think he had an option because he was told he had to succumb to the wishes of West Boggs and had no
Neither of the Waglers' briefs cite to authority regarding the law of duress. We observe that contracts induced by fraud or duress are voidable. Raymundo v. Hammond Clinic Ass'n, 449 N.E.2d 276, 283 (Ind.1983). "[I]n order to avoid a contract on the basis of duress, there must be an actual or threatened violence of restraint of a man's person contrary to law, to compel him to enter into a contract or discharge one." Carrasco v. Grubb, 824 N.E.2d 705, 711 (Ind.Ct. App.2005), reh'g denied, trans. denied (quotations and citation omitted). In deciding whether a person signed a document under duress, "the ultimate fact to be determined is whether or not the purported victim was deprived of the free exercise of his own will." Raymundo, 449 N.E.2d at 283. However, as West Boggs highlights, the agreed entry and judgments were negotiated by the Waglers' counsel, Ms. Hartman, and, in any event, such evidence (or the lack thereof) is insufficient to prove duress.
The Waglers also invoke the doctrines of unconscionability and impossibility and argue that either or both of these doctrines apply. First, regarding unconscionability, "we note that to be unconscionable, a contract `must be such as no sensible man not under delusion, duress or in distress would make, and such as no honest and fair man would accept.'" Precision Homes of Ind., Inc. v. Pickford, 844 N.E.2d 126, 132 (Ind.Ct.App.2006) (quoting Progressive Constr. & Eng'g Co. v. Ind. & Mich. Elec. Co., 533 N.E.2d 1279, 1286 (Ind.Ct.App.1989)), trans. denied. "Often there are circumstances that show that there was unequal bargaining power at the time the contract was executed that led the party with lesser power to enter into it unwillingly or without knowledge of its terms." Id. (citing Dan Purvis Drugs, Inc. v. Aetna Life Ins. Co., 412 N.E.2d 129, 131 (Ind.Ct.App.1980)).
Also, impossibility is an affirmative defense to performance of an executory contract and is generally invoked as a defense to an action for damages. Bernel v. Bernel, 930 N.E.2d 673, 683 (Ind.Ct. App.2010), trans. denied. Impossibility has been defined as "where the performance of a contract becomes impossible, non-performance is excused, and no damages can be recovered." Dove v. Rose Acre Farms, Inc., 434 N.E.2d 931, 935-936 (Ind.Ct.App.1982). To invoke impossibility, one must demonstrate that performance is "not merely difficult or relatively impossible, but absolutely impossible, owing to the act of God, the act of the law, or the loss or destruction of the subject-matter of the contract." Ross Clinic, Inc. v. Tabion, 419 N.E.2d 219, 223 (Ind.Ct.App. 1981) (quoting Krause v. Bd. of Trustees of Sch. Town of Crothersville, 162 Ind. 278, 283-284, 70 N.E. 264, 265 (1904)).
As noted above, the Waglers cite to 42 U.S.C. § 2000cc, as well as the First Amendment of the U.S. Constitution and Article 1, Sections 2 and 3 of the Indiana Constitution, in arguing that the agreed judgments are either unconscionable or impossible to perform based upon the freedom of religion. The Waglers provide some discussion of how these religious freedom provisions apply in the section of their briefs arguing that they have a meritorious
Further, the Waglers also appear to argue that the agreed entry and judgments fail because they "received no consideration." "The basic requirements are offer, acceptance, consideration, and `a meeting of the minds of the contracting parties.'" Morris v. Crain, 969 N.E.2d 119, 123 (Ind.Ct.App.2012). "To constitute consideration, there must be a benefit accruing to the promisor or a detriment to the promisee." Ind. Dep't of State Revenue v. Belterra Resort Ind., LLC, 935 N.E.2d 174, 179 (Ind.2010), modified on reh'g on other grounds, 942 N.E.2d 796 (2011). "A benefit is a legal right given to the promisor to which the promisor would not otherwise be entitled." Id. "A detriment on the other hand is a legal right the promisee has forborne." Id. "The doing of an act by one at the request of another which may be a detrimental inconvenience, however slight, to the party doing it or may be a benefit, however slight, to the party at whose request it is performed, is legal consideration for a promise by such requesting party." Id. "In the end, consideration — no matter what its form — consists of a bargained-for exchange." Id. (quotation omitted).
In each of the agreed entry and judgments, the Waglers agreed to connect their respective properties to the Sewer System and to reimburse West Boggs for the purchase of a "Grinder." Volume I Appendix at 94. West Boggs agreed that it would "maintain, at its cost and expense, the line carrying sewage and waste water from the Grinder to the Sewer System (the `Service line') and electrical service to the Grinder." Id. Also, we note that Norman Wagler indicated at his hearing that he signed the agreed entry in part because he "thought there might be some hope" he would not have to go to court, which is something that the Amish like to avoid. Norman's Transcript at 56. Under the circumstances, we conclude that the Waglers' arguments fail.
We conclude that the court did not abuse its discretion when it denied the Waglers' motions to set aside based upon Ind. Trial Rule 60(B)(8).
The second issue is whether the court erred in directing Janet & Nathan to connect to the Sewer System. Where, as here, the trial court enters findings and conclusions sua sponte, we apply the standard of review set out in Trial Rule 52. Chidester v. City of Hobart, 631 N.E.2d 908, 909 (Ind.1994). "We determine whether the evidence supports the findings
While we review findings of fact under the clearly erroneous standard, we review de novo a trial court's conclusions of law. Id; Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind.2002). "Where cases present mixed issues of fact and law, we have described the review as applying an abuse of discretion standard." Bowyer, 944 N.E.2d at 983; Fraley v. Minger, 829 N.E.2d 476, 482 (Ind.2005). We will conclude a judgment is clearly erroneous if no evidence supports the findings, the findings fail to support the judgment, or if the trial court applies the incorrect legal standard. Bowyer, 944 N.E.2d at 983-984. "In order to determine that a finding or conclusion is clearly erroneous, an appellate court's review of the evidence must leave it with the firm conviction that a mistake has been made." Id.; Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.1997). However, sua sponte findings control only as to the issues they cover and a general judgment will control as to the issues upon which there are no findings. Tracy v. Morell, 948 N.E.2d 855, 862 (Ind.Ct.App.2011). A general judgment entered with findings will be affirmed if it can be sustained on any legal theory supported by the evidence. Id.
Janet & Nathan contend that the trial court erred in its order in stating that West Boggs provided them with notice directing them to connect the property to the Sewer System. They argue that their issue raised is one of statutory interpretation, noting that Ind.Code § 8-1-2-125(d) "doesn't require [West Boggs] to force connection" and instead states that a sewer district "`may require' connection, not `shall require' connection." Id. at 6. Janet & Nathan assert that "[i]t only seems very plausible that the legislature didn't intend for such narrow construction of the statute that the word' may' [sic] should turn into `shall', if there is no evidence that a homeowner is polluting." Id. They also argue that the letter from West Boggs notifying them to connect to the Sewer System says West Boggs "may" require connection and that they "should" connect by a certain date, and that accordingly "[t]he trial court simply erred when it found `... West Boggs provided [them] with notice
West Boggs argues that while Janet & Nathan are correct that Section 125(d) gives West Boggs discretion to determine whether the property owner must connect, a property owner does not have discretion to refuse connection if there is an available sewer line within three hundred feet of their property line and the utility has given ninety-days notice by certified mail. West Boggs argues that it "exercised its admitted discretion, and Janet [&] Nathan's `judicial construction' argument over whether West Boggs `may' or `shall' force them to connect is irrelevant given that West Boggs exercised its option." Id. West Boggs also asserts that Section 125(d) does not require any specific terminology within the notice, only that it be sent by certified mail and provide ninety days to connect, and that there is no dispute that West Boggs did so. West Boggs
The relevant version of Ind.Code § 8-1-2-125(d) provides:
We observe that "[a] question of statutory interpretation is a matter of law to be determined de novo by this court." Wastewater One, LLC v. Floyd Cnty. Bd. of Zoning Appeals, 947 N.E.2d 1040, 1047 (Ind.Ct.App.2011), trans. denied. When interpreting a statute, we independently review a statute's meaning and apply it to the facts of the case under review. Bolin v. Wingert, 764 N.E.2d 201, 204 (Ind.2002). "The first step in interpreting any Indiana statute is to determine whether the legislature has spoken clearly and unambiguously on the point in question." St. Vincent Hosp. & Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 703-704 (Ind.2002). If a statute is unambiguous, we must give the statute its clear and plain meaning. Bolin, 764 N.E.2d at 204. A statute is unambiguous if it is not susceptible to more than one interpretation. Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942 (Ind. 2001). However, if a statute is susceptible to multiple interpretations, we must try to ascertain the legislature's intent and interpret the statute so as to effectuate that intent. Bolin, 764 N.E.2d at 204. We presume the legislature intended logical application of the language used in the statute, so as to avoid unjust or absurd results. Id.
We agree with West Boggs that the version of Ind.Code § 8-1-2-125(d) in effect at the relevant time plainly gives a not-for-profit sewer utility discretion in deciding whether to require a property owner to connect to a sewer system, but that upon request by the utility the property owner is required to comply with the utility's directive provided that (1) the sewer is within 300 feet of the property line; and (2) the utility provides written notice by certified mail at least ninety days before the connection date stated in the notice.
Janet & Nathan's Appendix at 85 (emphases added). When Janet & Nathan did not comply, West Boggs, on February 10, 2009, filed its complaint requesting an order requiring them to "promptly" connect into the Sewer System and pay all of the associated costs. Id. at 83-84. Although the letter stated that "connection should be made," we do not believe the court clearly erred when it found that the letter directed Janet & Nathan to connect to the Sewer System and did not provide them with a choice of whether to do so. We conclude that the court did not err in directing Janet & Nathan to connect to the Sewer System.
The final issue as raised by West Boggs is whether the trial court erred in denying its requests for attorney fees and costs against each party that filed an Ind. Trial Rule 60(B) motion, and whether West Boggs is entitled to appellate attorney fees against each of the Appellants. As an initial matter, we note that the trial court in Norman's case awarded West Boggs potential attorney fees should he fail to connect within sixty days. Also, West Boggs filed motions requesting attorney fees and costs in Terry & Laura's and Larry & Jennifer's cases, and the court denied West Boggs' motion against Larry & Jennifer on September 16, 2011 and against Terry & Laura on September 20, 2011 by entries in their respective chronological case summaries.
Ind.Code § 34-52-1-1, cited by West Boggs, provides:
"[T]he trial court's decision to award attorney's fees and any amount thereof is reviewed for an abuse of discretion." Purcell v. Old Nat. Bank, 972 N.E.2d 835, 843 (Ind.2012). "A trial court abuses its discretion if its decision clearly contravenes the logic and effect of the facts and circumstances or if the trial court has misinterpreted the law."
West Boggs argues that "[t]he Waglers' appeal is little more than another cursory attempt ... to delay and frustrate the development of West Boggs' sewer system." Appellee's Brief at 35. West Boggs argues that "[g]iven the Waglers' out-right refusal to comply based on a Rule 60(B) motion that they even conceded was inapplicable to an agreed entry, the trial court should have at least permitted West Boggs to recover its fees." Id. at 36 (citation omitted). West Boggs also contends that "the Agreed Judgments themselves required the Waglers to reimburse West Boggs' expenses for such an omission: `If West Boggs incurs costs and expenses because of the negligent acts or omission of the Waglers, then the Waglers shall promptly reimburse West Boggs." Id. (quoting Volume I Appendix at 86; Volume II Appendix at 237).
In each of West Boggs' verified motions for an award of attorneys' fees and costs, West Boggs stated in relevant part:
Volume I Appendix at 20.
First, we observe that West Boggs' suggestion that the agreed entry and judgments entered into by Terry & Laura and Larry & Jennifer required reimbursement is misplaced because the cited paragraph concerns "negligent acts or omissions" associated with installing or maintaining the sewer connection; West Boggs does not demonstrate that the Waglers committed a negligent act when they filed their Trial Rule 60(B) motions. To the extent that West Boggs suggests that the Waglers' goal in this litigation was to merely delay and frustrate the development of West Boggs' sewer system, we find that despite the shortcomings in their briefs and arguments, their decisions to hire new counsel and file motions to have the agreed entry and judgments set aside and assert that, as members of the Old Order Amish Church, they had meritorious claims based upon freedom of religion provisions found in the First Amendment to the U.S. Constitution and Article 1, Sections 2 and 3 of the Indiana Constitution, were not frivolous, unreasonable, or groundless and were not in bad faith. Accordingly we conclude that the trial court did not abuse its discretion in denying West Boggs' request for attorney fees and costs.
Regarding appellate attorney fees, Ind. Appellate Rule 66(E) provides that this 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." Our discretion to award attorney fees is limited to instances when an appeal is "permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay." Orr v. Turco Mfg. Co., Inc., 512 N.E.2d 151, 152 (Ind.1987). An appellate tribunal must use extreme restraint in exercising its discretionary power to award damages on appeal "because of the potential chilling effect upon the exercise of the right to appeal." Tioga Pines Living Ctr., Inc. v. Ind. Family & Social Serv. Admin., 760 N.E.2d 1080, 1087 (Ind.Ct.App.2001), affirmed on reh'g, trans. denied. Indiana appellate courts have classified claims for appellate attorney fees into substantive and procedural bad faith claims. Boczar v. Meridian St. Found., 749 N.E.2d 87, 95 (Ind.Ct.App.2001). To prevail on a substantive bad faith claim, the party must show the appellant's contentions and arguments are utterly void of all plausibility. Id. Substantive bad faith "implies the conscious doing of a wrong because of dishonest purpose or moral obliquity." Wallace v. Rosen, 765 N.E.2d 192, 201 (Ind.Ct.App. 2002). To prevail on a procedural bad faith claim, a party must show that the
For the same reasons as expressed above, we cannot say that the Appellants' claims are the product of substantive bad faith. Also, although the Appellants' briefs are deficient in citation in the argument sections, as the Appellants note, they do provide citation to the record in their statements of fact. Also, we cannot say that the Appellants in their briefs misstated relevant facts or wrote their briefs in a manner requiring maximum expenditure of time by West Boggs or this court. Accordingly, we decline to award West Boggs appellate attorney fees.
For the foregoing reasons, we affirm the orders of the trial courts and the denial of attorney fees and costs, and we deny West Boggs' request for appellate attorney fees.
Affirmed.
FRIEDLANDER, J., and PYLE, J., concur.
We also note that the Waglers in Norman's Brief argue that Norman "eventually signed an agreed entry by which he would connect, however [he] did not want to give in, felt coerced to assent to the agreement and received no consideration." Norman's Brief at 5.
