Stuart Reed and Michael Reed v. Michael Cassady ( 2015 )

Mar 09 2015, 9:42 am
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE
Anthony B. Ratliff Noah L. Gambill
Doninger Tuohy & Bailey LLP Wagner, Crawford and Gambill
Indianapolis, Indiana Terre Haute, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Stuart Reed and Michael Reed, March 9, 2015
Appellants-Defendants, Court of Appeals Cause No. 49A05-
1405-PL-220
v. Appeal from the Marion Superior
Court
Michael Cassady, The Honorable Robert R. Altice, Jr.,
Appellee-Plaintiff. Judge
Cause No. 49D05-1207-PL-27350
Brown, Judge.
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[1] Stuart Reed and Michael Reed (the “Reeds”) appeal the trial court’s order on
April 22, 2014, related to certain discovery sanctions and contempt for failure to
pay other previously-ordered sanctions. We affirm.
Facts and Procedural History
[2] On July 10, 2012, Michael Cassady filed a Verified Complaint for Damages
and for Declaratory and Permanent Injunctive Relief against Stuart Reed,
Michael Reed, Distinctive Transportation Services, Inc. (“DTS”), Specialty
Transportation, LLC (“Specialty”), and Executive Coach, LLC (collectively,
the “Defendants”). Cassady alleged that he is a shareholder of DTS, that Stuart
Reed is a shareholder of DTS and its president and sole director and a member
of Executive Coach, LLC, that DTS is a full-service transportation company,
that DTS has three shareholders, and that Cassady owns forty percent of DTS,
Stuart Reed owns fifty-one percent of DTS, and Michael Reed owns nine
percent of DTS. Cassady alleged that the Reeds used their corporate control of
DTS to divert profits from DTS to other companies and unlawfully used DTS’s
assets for the benefit of other companies in which the Reeds had an ownership
interest, that at one time, of the 136 cars that were titled to DTS, only seventy-
nine were being used by DTS, that Cassady objected to the misuse of DTS’s
assets because it was causing DTS to lose significant profits and substantially
impair the value of Cassady’s shares in DTS, and that, in retaliation against his
objections, the Reeds decided to terminate Cassady’s employment with DTS
and to distribute DTS’s assets to other companies controlled by the Reeds.
Cassady asserted three counts of breach of fiduciary duty, including for
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oppressive conduct, corporate freeze out, and self-dealing, and counts of
retaliatory discharge, breach of contract, and conversion, and he requested
declaratory judgment.
[3] The Defendants filed counterclaims alleging in part that Cassady was negligent
in his duties regarding the management of DTS and removed assets of DTS,
and raising counts of breach of fiduciary duties and conversion.
[4] On April 30, 2013, Cassady filed a motion to compel discovery arguing that it
had been since July 2012 that he served DTS with interrogatories and a request
for production of documents, that DTS’s only response was evasive
interrogatory answers and a stack of nearly 1,900 pages of largely
nonresponsive paper documents, and that DTS refused to produce certain
readily-available financial documents, tax returns, and responsive email
messages. Cassady attached to his motion copies of the discovery requests,
copies of DTS’s written discovery responses, and several letters by Cassady’s
counsel regarding the discovery, among other documents.
[5] On May 14, 2013, DTS filed a response to Cassady’s motion to compel
discovery arguing in part that it had bate-stamped the documents it produced
and referred to bate numbers throughout its responses to aid review by
Cassady’s counsel, that Cassady’s counsel had not raised any issues with the
discovery responses for nearly six months, that Cassady’s counsel then sent
twenty pages of demands and insisted they be met within eight days, that the
motion to compel was wholly unnecessary and filed in bad faith, and that the
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court should award DTS attorney fees incurred in responding to the spurious
motion.
[6] On July 24, 2013, the court held a hearing on Cassady’s motion to compel
discovery, granted the motion, stated it wanted full and complete responses
within thirty days, and scheduled a status conference for August 26, 2013. The
court also discussed the scheduling of a deposition for October 2013 and stated
that “some of the language in some of these motions could have been a poster
child on both sides to show the young lawyers . . . how not to behave.”
Transcript at 40.
[7] The court held status conferences on August 26, 2013, and September 30, 2013.
At the latter, the court stated that it was going to grant fees because the court’s
“bark’s got to be backed up,” that it was going to award fees to Cassady in the
amount of $10,000 for failure to comply, and that the amount must be paid
within thirty days. Id. at 126.
[8] An entry in the trial court’s chronological case summary (“CCS”) dated
October 4, 2013, stated:
Hearing Date: 09/30/2013
Matter come on for a hearing regarding plaintiff[‘]s motion to compel;
court finds that def’s have still not complied and awards $10,000 for
fees to plaintiff as a sanction for non compliance. Fee award to be
paid within 30 days. . . .
Appellants’ Appendix at 6. On October 4, 2013, the Defendants filed a motion
to reconsider sanction, and on October 8, 2013, the court denied the motion.
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On October 30, 2013, DTS filed a notice of appeal under Court of Appeals
Cause No. 49A05-1310-PL-528 (the “First Appeal”) with respect to the court’s
September 30, 2013 sanction order.
[9] On December 19, 2013, Cassady filed a motion for hearing, and on February 7,
2014, the court held a hearing and set the matter for another status conference
on February 26, 2014. On February 12, 2014, the court issued an order which
provided that DTS was to produce certain responsive email messages, including
emails of Stuart and Michael Reed, and other documents on or before February
17, 2014.
[10] On February 26, 2014, the trial court held the scheduled status conference at
which Cassady’s counsel requested a monetary sanction of $30,000. The court
stated to Defendants’ counsel that it was “at [its] wits’ end here,” that it thought
“the only way to get your client’s attention is to impose sanctions for the
discovery violations,” and that it was going to impose $30,000. Transcript at
250. The court also stated “I’m going to give you 90 [days] because I’m going
to tell you what the next sanction that I’m going to consider is a default
judgment” and “I’m hopeful that that will work but, you know, if we’re back
here in 90 days and nothing’s done, it’s not going to be good.” Id. at 251-252.
The CCS entry dated February 26, 2014, for the status conference indicates the
court found that “Defendants have not timely complied with this Court[‘]s
February 12, 2014 Discovery Order and the Court imposes sanctions against
the Defendants in the amount of $30,000” and “Court gives Defendants
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additional 90 days to comply with outstanding discovery . . . .” Appellants’
Appendix at 10.
[11] On March 4, 2014, the court entered an order which stated that Cassady had
moved “to sanction the Defendants for their ongoing failure to cooperate in
discovery,” that the court “now GRANTS [Cassady’s] Motion in all respects,”
and that “the Defendants shall, within thirty (30) days of the date of this Order,
pay Plaintiff Michael Cassady the amount of thirty thousand [dollars] ($30,000)
as a sanction for the Defendants’ ongoing failure to cooperate in discovery.” Id.
at 134.
[12] On March 5, 2014, the Defendants filed a “Motion to Dismiss (Voluntary)”
with this Court pursuant to Ind. Appellate Rule 36(A) requesting this Court “to
dismiss this interlocutory appeal in its entirety.” Appellee’s Appendix at 18.
The same day, the Defendants filed with the trial court a motion to reconsider
the March 4, 2014 order and argued in part that “[t]he Order tendered by
counsel for [Cassady] assesses sanctions against all defendants to this litigation,
which was contrary to the February 26, 2014 hearing” and that “[t]he Court’s
ruling was that discovery sanctions would be assessed against [DTS].”
Appellants’ Appendix at 136.
[13] On March 10, 2014, this Court granted the Defendants’ motion to dismiss and
ordered that the First Appeal be dismissed with prejudice. On March 13, 2014,
the trial court denied the Defendants’ March 5, 2014 motion to reconsider. On
March 18, 2014, Cassady filed a Motion to Enforce the September 30, 2013
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Order Sanctioning Defendants. In the motion, Cassady argued that “[t]he
[D]efendants’ only excuse for delaying payment to Mr. Cassady – the short-
lived appeal of defendant DTS – is no longer valid because that appeal has been
dismissed with prejudice” and that “[t]here is no reason for the defendants to
delay any longer,” and requested the court to order the Defendants to
immediately pay him the $10,000 award which was substantially overdue. Id.
at 138.
[14] On March 20, 2014, the court entered an order granting Cassady’s motion to
enforce and ordered the Defendants to pay Cassady the amount of $10,000 no
later than March 31, 2014, pursuant to its September 30, 2013 order. On
March 28, 2014, the Defendants filed a motion to reconsider the March 20,
2014 order, arguing that the September 30, 2013 order related only to Cassady’s
interrogatories and request for production of documents to DTS.
[15] On April 3, 2014, Cassady filed a verified motion to show cause in which he
asserted that the Defendants had violated the court’s September 30, 2013 and
March 20, 2014 orders by failing to timely pay Cassady the $10,000 sanction,
and requested that the court require the Defendants to show cause why they
should not be held in contempt of court for violating the orders.
[16] On April 8, 2014, Cassady filed a Motion to Enforce the March 4, 2014 Order
Sanctioning Defendants requesting the court to order the Defendants to
immediately pay him $30,000. The same day, the court entered an order that
the Defendants’ motion to reconsider the March 20, 2014 order was granted,
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and the court ordered that the “Order dated March 20, 2014 is hereby vacated
as to each Defendant herein with the exception of [DTS].” Id. at 148. The
court scheduled a hearing for April 22, 2014, on Cassady’s April 3, 2014
motion for rule to show cause and his April 8, 2014 motion to enforce the
March 4, 2014 order.1
[17] On April 11, 2014, the Reeds filed a notice of appeal under Court of Appeals
cause number 49A02-1404-PL-248 (the “Second Appeal”) with respect to the
trial court’s March 4, 2014 order and March 13, 2014 denial of the Defendants’
motion to reconsider.
[18] On April 22, 2014, the court held the scheduled hearing at which the Reeds did
not appear. At the hearing, counsel for the Defendants stated that he had
communications with Cassady’s counsel regarding the Second Appeal, that
Cassady’s counsel had indicated his position was going to be that the Second
Appeal was untimely as it was based on the denial of a motion to reconsider,
and that, not wishing to incur fees unnecessarily, the intention was to withdraw
the appeal. The court stated “[s]o if I grant the enforcement, then that’s what
1
The CCS entry scheduling the hearing stated: “Defendants ordered to appear.” Appellants’ Appendix at
11.
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you will appeal. You’ll file another appeal on that,” and the Defendants’
counsel replied, “Correct, Judge.” Transcript at 268.
[19] With respect to the $30,000 sanction, counsel for the Defendants argued that
there had been no discovery served on Michael Reed, that the only set of
interrogatories sent to Stuart Reed were not the subject of any motions to
compel, and that the only discovery at issue when the court awarded the
sanction was discovery to DTS. The court stated, “[w]ell, my recollection is the
issues not only were dealing with Stuart, Michael Reed and DTS, but all those
non-parties that are below them, which is why, if I recall my jacket entry, I put
in that the sanction was to all defendants. To the defendants – I didn’t say to all
defendant, I just to the defendants and that was my intention, because I still
haven’t figured out – I mean, they all have stuff with counsel, you guys are
representing them on that.” Id. at 272. Cassady’s counsel stated that there had
been discussion at a previous hearing regarding the production of email
messages of Stuart and Michael Reed. Following additional arguments, the
court stated that it was finding DTS in contempt and giving it thirty days to pay
$10,000 and that, if the $10,000 was not paid by that date, then the court would
issue a warrant for the arrest of the lone remaining officer and hold him until
the amount is paid. The court also indicated it would grant Cassady’s motion
to enforce regarding the $30,000 sanction and that the sanction was joint and
several with regard to the Defendants.
[20] The court issued a written order dated April 22, 2014 granting Cassady’s
motion to enforce the March 4, 2014 order sanctioning defendants and stating
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“[t]he Defendants are jointly and severally responsible for the full amount of the
March 4, 2014 Order.” Appellants’ Appendix at 18. A CCS entry dated April
22, 2014, addressed both Cassady’s April 3, 2014 motion to show cause related
to the $10,000 sanction and his April 8, 2014 motion to enforce the March 4,
2014 order related to the $30,000 sanction and provides:
Jacket Entry: Matter comes on for hearing on Plaintiff[‘]s motion to
show cause and on [his] motion to enforce 030414 order sanctioning
Defendants. Parties show cause, court finds Defendants DTS in
contempt and gives DTS 30 days to pay the previously ordered
$10,000.00 sanction; if $10,000.00 is not paid within 30 days court will
issue a warrant for the arrest of the primary officer as of today’s date,
of DTS in custody until $10,000.00 is paid. Regarding Plaintiff[‘]s
motion to enforce 030414 order sanctioning defendants, $30,000.00
within 30 days. Defendants are jointly and severally liable as to
$30,000.00 sanction. Notice sent.
Id. at 12.
[21] On May 20, 2014, the Reeds filed a notice of appeal (the “Third Appeal”) from
which this appeal arises with respect to the trial court’s April 22, 2014 order.
Also on that date, the Reeds filed a motion to stay enforcement of the April 22,
2014 order pending appeal. On May 23, 2014, Cassady filed a submission of
authority regarding the court’s ability to issue an arrest warrant to coerce DTS’s
compliance with court orders.
[22] On May 29, 2014, the trial court entered an order on the Defendants’ motion to
stay enforcement of the April 22, 2014 order pending appeal. The court
ordered that enforcement of the $30,000 sanction ordered on March 4, 2014
was stayed pending appeal. The court further ordered that enforcement of the
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$10,000 sanction ordered against DTS was not stayed, that counsel for DTS
was ordered to provide the court with the name of the primary officer of DTS
by June 2, 2014, that the court would give DTS until 12:00 p.m. on June 6,
2014 to pay the sanction, and that Cassady was to notify the court if he was not
paid the sanction as ordered. On June 3, 2014, the Defendants filed a motion
to reconsider and submission of legal authority. The Defendants filed a Notice
to Court, file-stamped on June 9, 2014, notifying the court that the sanction
issued on September 30, 2013 against DTS in the amount of $10,000 had been
paid in full by Stuart Reed and that the payment was made under protest and to
prevent the issuance of a bench warrant. On June 13, 2014, the Reeds filed
with this Court a motion to dismiss their Second Appeal. On June 16, 2014,
this Court issued an order granting the Reeds’ motion and ordering that the
Second Appeal be dismissed with prejudice.
Discussion
[23] The issue is whether the trial court erred in entering the April 22, 2014 order.
The Reeds claim that the court erred when, upon finding DTS in contempt for
failure to pay the $10,000 sanction, the court ordered that, if DTS did not
comply with the court’s order, a bench warrant would be issued for the arrest of
DTS’s primary officer. The Reeds further assert that the court erred in
imposing joint and several liability on all the Defendants with respect to the
$30,000 sanction. Cassady maintains that Ind. Trial Rule 37(B)(2)(c) expressly
provides that a court may impose sanctions if a party fails to comply with an
order to compel discovery, that the Reeds do not appeal the severity or nature
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of the sanction but only that it should not be levied upon them, and that, while
an officer or director is not normally liable for action taken as a director, the
plain language of Ind. Code § 23-1-35-1 indicates that Stuart Reed can be held
liable, even in the context of a discovery sanction, for the willful or reckless
breach of his duties as an officer.2
[24] With respect to the $30,000 sanction, the trial court’s April 22, 2014 order
granted Cassady’s April 8, 2014 motion to enforce the previously-imposed
$30,000 sanction and provided that Defendants are jointly and severally liable
as to the $30,000 sanction. Decisions concerning the imposition of sanctions
for discovery violations fall within the trial court’s sound discretion. Whitaker v.
Becker, 960 N.E.2d 111, 115 (Ind. 2012). Trial judges stand much closer than an
appellate court to the currents of litigation pending before them, and they have
a correspondingly better sense of which sanctions will adequately protect the
2
Ind. Code § 23-1-35-1(e) provides:
A director is not liable for any action taken as a director, or any failure to take any action,
regardless of the nature of the alleged breach of duty, including alleged breaches of the
duty of care, the duty of loyalty, and the duty of good faith, unless:
(1) the director has breached or failed to perform the duties of the director’s
office in compliance with this section; and
(2) the breach or failure to perform constitutes willful misconduct or
recklessness.
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litigants in any given case, without going overboard, while still discouraging
gamesmanship in future litigation. Id. Accordingly, we review a trial court’s
decision to impose discovery sanctions for an abuse of discretion. Id.
[25] Ind. Trial Rule 37(B)(2)(c) expressly provides that a trial court may impose
sanctions, including outright dismissal of the case or default judgment, if a party
fails to comply with an order to compel discovery. Id. “We presume that the
trial court will ‘act in accord with what is fair and equitable in each case,’ and
thus we will only reverse ‘if the trial court’s decision is clearly against the logic
and effect of the facts and circumstances before the court, or if the trial court
has misinterpreted the law.’” Wright v. Miller, 989 N.E.2d 324, 330 (Ind. 2013)
(quoting McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind. 1993)); see
Whitaker, 960 N.E.2d at 116 (noting that the regular practice is to fashion
progressive sanctions leading up to a dismissal or default judgment when it is
possible to do so). When we review for an abuse of discretion, we do not
reweigh the evidence. Brightpoint, Inc. v. Pedersen, 930 N.E.2d 34, 38 (Ind. Ct.
App. 2010), trans. denied.
[26] “The term ‘joint and several’ means that all parties are bound individually
(severally) and as a unit (jointly).” Konger v. Schillace, 875 N.E.2d 343, 348 (Ind.
Ct. App. 2007) (citing Scott v. Randle, 736 N.E.2d 308, 314 (Ind. Ct. App.
2000)).
[27] The $30,000 sanction was imposed by the court in its February 26 and March 4,
2014 orders. We first note that these orders were unambiguous that the
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sanction was entered against Defendants as a result of Defendants’ conduct.
See Appellants’ Appendix at 10 (the February 26, 2014 CCS entry states in part
that “Defendants have not timely complied with this Court[’]s February 12, 2014
Discovery Order” and that “the Court imposes sanctions against the Defendants
in the amount of $30,000”); id. at 134 (the March 4, 2014 order provided that
“the Defendants shall . . . pay [] Cassady the amount of thirty thousand [dollars]
($30,000) as a sanction for the Defendants’ ongoing failure to cooperate in
discovery”) (emphases added). The Reeds did not timely appeal from the
February 26, 2014 order and moved to withdraw their Second Appeal with
respect to the March 4, 2014 order, and this Court dismissed the Second Appeal
with prejudice.
[28] In addition, the trial court indicated that the issues involved Stuart Reed and
Michael Reed. Specifically, at the April 22, 2014 hearing, the court stated that
its “recollection is the issues not only were dealing with Stuart, Michael Reed
and DTS, but all those non-parties that are below them . . . .” Transcript at
272. The court’s view was warranted based upon Cassady’s allegations and
discovery requests. That is, Cassady alleged that the Reeds decided to
distribute DTS’s assets to other companies controlled by the Reeds, and
Cassady’s discovery requests related to the Reeds, DTS, and the companies
allegedly owned by the Reeds and the transactions between them.
[29] Specifically, Cassady attached to his April 30, 2013 motion to compel discovery
copies of certain discovery requests and letters by his counsel regarding the
discovery. The attached interrogatories and request for production of
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documents, similar to Cassady’s complaint, defined the “Reed Companies” to
mean “any and all companies in which either Stuart Reed and/or Michael
Reed had or has an ownership interest” and identified a number of those
companies. Appellants’ Appendix at 57, 70. An exhibit attached to a letter by
Cassady’s counsel addressed to counsel for Defendants also noted the definition
of the Reed Companies and included a list of company names.3 The
interrogatories attached to Cassady’s motion to compel discovery show that
Cassady had asked DTS to describe the terms under which DTS and/or
Specialty provided any services to each of the Reed Companies, including the
identity of any vehicles sold, leased, or provided to the Reed Companies, the
amount of compensation provided by each of the Reed companies to DTS
and/or Specialty, whether DTS and/or Specialty provided any services to the
Reed Companies for which DTS and/or Specialty was not compensated and, if
so, the nature of the service provided, and the nature of any other transactions
between DTS and/or Specialty and the Reed Companies. The request for
production of documents attached to Cassady’s motion to compel discovery
shows that Cassady had asked DTS to produce all documents related to the
services provided by DTS and/or Specialty to the Reed Companies or other
3
The exhibit again defined the Reed Companies as any and all companies in which either Stuart Reed
and/or Michael Reed had or has an ownership interest and named over 150 companies.
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transaction between DTS and/or Specialty and the Reed Companies. In
response, Defendants stated in part that they objected to the definition of the
Reed Companies, as the entities listed within the definition have differing
ownership and are separate entities, and that Defendants continued to
reconstruct actions which occurred or should have occurred under Cassady’s
control.
[30] In a letter dated March 28, 2013, counsel for Cassady stated that DTS’s answer
was not responsive, that the response was untimely, that Cassady had alleged
that the Reeds illegally used their corporate control over DTS to divert profits
from DTS to other companies and used DTS’s assets for the benefit of the Reed
Companies, that “[w]ithout question, all of DTS’s business records of its
dealings with all such entities are relevant to [Cassady’s] claims because they
will show . . . that [the Reeds] . . . diverted profits to the Reed Companies,” and
that the fact that “the Reed Companies may or may not be separate legal
entities with differing ownership does not affect these claims.” Appellants’
Appendix at 101. The letter reiterated that Cassady was requesting all
information and records responsive to the entities that meet the definition of the
Reed Companies including those listed on an attached exhibit.
[31] At the February 26, 2014 hearing, well after the letter by Cassady’s counsel
dated March 28, 2013, and after other status hearings, the trial court stated that
it was “at [its] wits’ end here,” that “the only way to get your client’s attention
is to impose sanctions for the discovery violations,” and that it was going to
impose $30,000 in sanctions. Transcript at 250. The Reeds did not appear at
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the April 22, 2014 hearing after which the court granted Cassady’s motion to
enforce the sanction order.
[32] Moreover, Defendants admit that Stuart Reed is the president, secretary,
treasurer, and sole director of DTS, and that Stuart Reed and Michael Reed are
members of Executive Coach, LLC; Cassady alleges that DTS is an Indiana
close corporation, that Specialty is a wholly-owned subsidiary of DTS, that
DTS has three shareholders, and that Stuart Reed owns fifty-one percent of
DTS, Cassady owns forty percent, and Michael Reed owns nine percent; and
the Reeds were named Defendants in Cassady’s complaint.
[33] Based upon documents in the parties’ appendices and the hearing transcripts as
set forth in part above, the record reveals there was a factual basis for the trial
court’s decision to enter the discovery sanction against Defendants jointly and
severally, and we cannot say the court abused its discretion in imposing the
sanction jointly and severally under the circumstances. See Scott, 736 N.E.2d at
315 (holding a factual basis existed for the trial court’s determination that four
family members be held jointly and severally liable where the court found that
all of the members had acted in bad faith and pursued an unreasonable claim in
continuing to litigate a matter); see also Eaton Corp. v. Frisby, 133 So. 3d 735, 747-
752 (Miss. 2013) (affirming the trial court’s imposition of a joint and several
monetary sanction for intentional discovery violations), reh’g denied; In re
Zenergy, Inc., 968 S.W.2d 1, 11 (Tex. App. 1997) (holding that the trial court did
not abuse its discretion in imposing joint and several liability for the monetary
sanctions). Based upon the record, reversal of the trial court’s April 22, 2014
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order granting Cassady’s motion to enforce the $30,000 sanction and expressly
ordering that Defendants be jointly and severally liable as to the sanction is not
warranted.
[34] With respect to the $10,000 sanction, the trial court entered a finding that DTS
was in contempt of court for failure to pay the previously ordered $10,000
sanction, and ordered that if the sanction was not paid within thirty days, the
court would issue a warrant for the arrest of DTS’s primary officer. We review
the trial court’s ruling on a contempt petition for an abuse of discretion. S.W. ex
rel. Wesolowski v. Kurtic, 950 N.E.2d 19, 21 (Ind. Ct. App. 2011). We affirm
unless, after reviewing the record, we conclude that the trial court’s decision is
against the logic and circumstances before it and we have a firm and definite
belief that a mistake has been made by the trial court. Id.
[35] Contempt of court involves disobedience of a court order which undermines the
court’s authority, justice, and dignity. City of Gary v. Major, 822 N.E.2d 165,
169 (Ind. 2005). Ind. Code § 34-47-3-1 provides that “[a] person who is guilty
of any willful disobedience of any process, or any order lawfully issued . . . by
any court of record . . . is guilty of an indirect contempt of the court that issued
the process or order.” This statutory definition is a legislative recognition of the
courts’ inherent power to cite and punish for contempt. City of Gary, 822
N.E.2d at 169. “A court’s inherent civil contempt powers are both coercive and
remedial in nature.” Kurtic, 950 N.E.2d at 22 (citing Flash v. Holtsclaw, 789
N.E.2d 955, 959 (Ind. Ct. App. 2003), trans. denied).
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[36] In a civil contempt proceeding, the primary objective is not to punish, but
rather, to coerce action or to compensate the aggrieved party. Id. In such cases,
imprisonment may be imposed in order to coerce compliance with the court
order. Id. See also Duemling v. Fort Wayne Cmty. Concerts, Inc., 243 Ind. 521, 525,
188 N.E.2d 274, 276 (1963) (“In a civil contempt action the fine is to be paid to
the aggrieved party, and imprisonment is for the purpose of coercing
compliance with the order.”); Moore v. Ferguson, 680 N.E.2d 862, 865 (Ind. Ct.
App. 1997) (noting that imprisonment may be used in civil contempt
proceedings and that an order of the court that a defendant be committed to jail
for a certain period of time unless and until he complies with the original order
is not punitive but coercive) (citing Duemling, 243 Ind. at 525, 188 N.E.2d at
277), trans. denied. Ind. Code § 34-47-3-6 provides that, upon a rule to show
cause, “[i]f the defendant [] fails to appear . . . the court may proceed at once,
and without any further delay, to attach and punish the defendant for
contempt” and that, “[i]f the defendant’s answer to the rule does not sufficiently
deny, explain, or avoid the facts set forth in the rule, so as to show that no
contempt has been committed, the court may proceed to attach and punish the
defendant for the contempt, by: (1) fine; (2) imprisonment; or (3) both fine and
imprisonment.”
[37] If the court uses imprisonment to coerce the defendant into doing an affirmative
act, the court must provide that the imprisonment cease as soon as the act is
done. Moore, 680 N.E.2d at 865 (citing Webster v. State, 673 N.E.2d 509, 512
(Ind. Ct. App. 1996) (citing State ex rel McMinn v. Gentry, 229 Ind. 615, 100
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N.E.2d 676, 678 (1951)), trans. denied). A jail sentence for civil contempt must
be coercive rather than punitive in nature, and, to avoid being purely punitive, a
contempt order must offer an opportunity for the recalcitrant party to purge
himself or herself of the contempt. In re Paternity of C.N.S., 901 N.E.2d 1102,
1106 (Ind. Ct. App. 2009). See also Nat’l Educ. Ass’n--S. Bend v. S. Bend Cmty.
Sch. Corp., 655 N.E.2d 516, 523 (Ind. Ct. App. 1995) (“When a fine is not
compensatory, it is civil only if the contemnor is afforded an opportunity to
purge.” (quoting Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821,
829, 114 S. Ct. 2552, 2558 (1994))).
[38] “A command to the corporation is in effect a command to those who are
officially responsible for its affairs.” Reich v. Sea Sprite Boat Co., 50 F.3d 413,
417 (7th Cir. 1995) (citing Wilson v. United States, 221 U.S. 361, 376, 31 S. Ct.
538, 542 (1911)), reh’g denied. “If they, apprised of the writ directed to the
corporation, prevent compliance or fail to take appropriate action within their
power for the performance of the corporate duty, they, no less than the
corporation itself, are guilty of disobedience and may be punished for
contempt.” Id.
[39] The trial court imposed the $10,000 sanction at the September 30, 2013 status
conference, which was reflected in the CCS. In its March 20, 2014 order, as
amended by its April 8, 2014 order, the trial court again ordered DTS to pay the
$10,000 sanction. The court noted that the Reeds did not appear for the
hearing on the motion to show cause. In its April 22, 2014 order, the court
found DTS in contempt and stated that it would issue a warrant for the arrest of
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DTS’s primary officer if the amount were not paid. Defendants admit Stuart
Reed is the president and sole director of DTS, and Cassady alleges that Stuart
Reed owns fifty-one percent of DTS and Michael Reed owns nine percent. The
information before the court was that DTS acts at the direction of Stuart Reed.
In addition, Cassady alleges that Specialty is a wholly-owned subsidiary of
DTS, that Stuart Reed is a member of Executive Coach, LLC, and that, at the
direction of Stuart Reed and Michael Reed, DTS distributed its assets to other
companies controlled by the Reeds. The trial court could conclude, based upon
the information before it as set forth above and in the record, that Stuart Reed’s
actions of not appearing for the contempt hearing and ignoring the court’s
previous orders directing DTS to take action were intended to prevent the
litigation from moving forward. Moreover, we observe that the trial court
provided an opportunity for DTS to cure or purge itself of contempt by
complying with the court’s sanction order within thirty days.
[40] In light of DTS’s continued refusal to pay the ordered sanction, the information
available to the court that Stuart Reed was the controlling officer and
shareholder of DTS, the length of time provided by the court for DTS to pay the
sanction or show cause why it was unable to make the ordered payment, and
the allegations that DTS, at the direction of the Reeds, distributed DTS’s assets
to other companies controlled by the Reeds, we cannot say under the particular
facts and circumstances of this case that the trial court abused its discretion or
erred in finding DTS in contempt and ordering that a warrant for the arrest of
DTS’s primary officer would be issued if DTS did not comply with the $10,000
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sanction order. See In re Moroun, 814 N.W.2d 319, 330-334 (Mich. Ct. App.
2012) (noting, citing Wilson, supra, that individuals who are officially
responsible for the conduct of a corporation’s affairs are required to obey a
court order directed at the corporation, that the trial court had found a
construction company in civil contempt for failing to comply with a previous
order, that the director of the company did not assert he had no authority over
the company or its affairs and that any such assertion would not have been
credible, and that there was no dispute regarding the authority of the officer
over the company, and holding in part, where the trial court had ordered the
director and officer be imprisoned as a result of the contempt determination,
that “[w]e cannot say that the trial court’s decision to use coercive measures,
including incarceration, over other alternatives fell outside the range of
principled outcomes or that the decision constituted an abuse of discretion”),
appeal denied; Ex parte Chambers, 898 S.W.2d 257, 260-261 (Tex. 1995) (citing
Wilson, noting that the record indicated that Chambers was IBS’s only officer,
its only director, and only shareholder, that Chambers was present when the
trial court ordered IBS to pay the initial contempt fine, that since Chambers was
the only person capable of compelling IBS to pay the court ordered fine it was
clear that IBS’s disobedience was due to Chambers’s personal refusal to act, and
that, since the order to IBS was binding on Chambers, the judgment of
contempt against Chambers was not void), reh’g overruled. See also Reich, 50
F.3d at 417 (7th Cir. 1995) (finding that Smith as the president and sole
shareholder of Sea Sprite was no less bound by the court’s order than Sea Sprite
itself, that a command to the corporation is in effect a command to those who
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are officially responsible for its affairs, that if they prevent compliance or fail to
take appropriate action within their power for the performance of the corporate
duty they are guilty of disobedience and may be punished for contempt, that
Smith was obliged to secure Sea Sprite’s compliance and instead ensured its
defiance, that the formation of another company to evade judgments against
Sea Sprite was a further act of contempt, and that a shuffle between two
corporations both wholly owned by Smith could avoid the court’s order)
(citations omitted). And see Shales v. T. Manning Concrete, Inc., 847 F. Supp. 2d
1102, 1115-1117 (N.D. Ill. 2012) (finding that there was clear and convincing
evidence that the president of a company acted in contempt of court when he
caused the company’s assets to be disbursed in violation of a previous order);
Huffman v. Armenia, 645 S.E.2d 23, 27 (Ga. Ct. App. 2007) (holding in part that
the trial court did not abuse its discretion in finding the president of a
corporation in contempt of the court’s temporary restraining order related to
depleting corporate assets), reconsideration denied, cert. denied. Our review of the
record does not leave us with a firm and definite belief that a mistake has been
made by the trial court. Reversal of the trial court’s April 22, 2014 order is not
warranted on this basis.
Conclusion
[41] For the foregoing reasons, we affirm the trial court’s April 22, 2014 order in all
respects.
[42] Affirmed.
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Bailey, J., and Robb, J., concur.
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