Gregory J. Mills v. Dean Kimbley

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
FILED
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law
Feb 10 2012, 8:18 am
of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
P. ADAM DAVIS RUSSELL L. BROWN
Davis & Sarbinoff, LLC Clark Quinn Moses Scott & Grahn, LLP
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GREGORY J. MILLS, )
)
Appellant-Cross-Appellee, )
)
vs. ) No. 49A04-1105-CT-236
)
DEAN KIMBLEY, )
)
Appellee-Cross-Appellant. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Michael D. Keele, Judge
Cause No. 49D07-0610-PL-43445
February 10, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Gregory Mills appeals the trial court’s denial of his contempt motion filed against
Dean Kimbley, who cross-appeals the trial court’s denial of his request for liquidated
damages and attorney fees. We affirm in part, reverse in part, and remand.
Issues
Mills raises four issues, which we consolidate and restate as whether the trial court
properly denied his contempt motion. On cross-appeal, Kimbley raises one issue, which
we restate as whether, as the prevailing party, he was entitled to liquidated damages and
attorney fees.
Facts
Mills and Kimbley are next-door neighbors in Indianapolis. On his property,
Kimbley has an in-ground swimming pool and a garage with a game room above it. In
2006, Mills and Kimbley became involved in litigation regarding what Mills believed
was Kimbley’s disruptive activity, including Kimbley playing loud music. Mills
documented these activities in a journal and by videotaping Kimbley and his guests
without their permission.
Mills filed a complaint alleging nuisance, common law and criminal trespass, and
intentional infliction of emotional distress. Kimbley eventually filed a counter-claim
alleging invasion of privacy. In 2008, Kimbley moved for summary judgment on Mills’s
claims and his own counter-claim. The trial court granted summary judgment in favor of
Kimbley on all of the claims and scheduled a hearing on damages. Mills appealed, and
we reversed the trial court’s grant of summary judgment on Mills’s trespass claims and
2
Kimbley’s invasion of privacy counter-claim. See Mills v. Kimbley, No. 49A02-0902-
CV-174 (Ind. Ct. App. July, 23, 2009). We affirmed the trial court’s grant of summary
judgment on Mills’s nuisance claim and his intentional infliction of emotional distress
claim. See id. Mills sought transfer, and our supreme court vacated our opinion and
dismissed the appeal for lack of jurisdiction because the trial court’s summary judgment
order was not a final appealable order because there had been no determination of
damages. See Mills v. Kimbley, 932 N.E.2d 1230 (Ind. 2010) (order dismissing appeal).
On September 15, 2010, the parties entered into an agreed judgment (“Agreed
Judgment”), which was approved by the trial court. The Agreed Judgment provided in
part:
3. Defendant [Kimbley] shall be entitled to use his
property in accordance with all local ordinances and state
statute. Specifically, Defendant shall be permitted to play
music and/or create noise outside between the hours of 7:00
A.M. and 10:00 P.M. as permitted by Indianapolis Marion
County Code, Section 391-302(c)(2). Should Plaintiff [Mills]
feel at any time between the hours of 7:00 A.M. and 10:00
P.M. that the level of music and/or noise coming from
Defendant’s property is at an unreasonable level inside
Plaintiff’s home, Plaintiff shall politely communicate this to
the Defendant via text message or phone call at the numbers
provided to Plaintiff by Defendant. If the Defendant fails to
reduce the level of the music and/or noise within thirty (30)
minutes of such a request so it is no longer audible inside
Plaintiff’s home, Plaintiff shall be entitled to capture the level
of sound via any reasonable means, including, but not limited
to, video recording for purposes of showing that Defendant is
in breach of this Agreed Judgment.
4. If Defendant is playing music and/or creating noise
outside his home which is audible on the Plaintiff’s property
(include [sic] inside and outsideof [sic] Pliantiff’s [sic] home)
between the hours of 10:00 P.M. and 7:00 A.M. or is playing
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music and/or creating noise from inside any structures located
on his property which is audible from Plaintiff’s property [ ]
(including in side [sic] and outside of Plaintiff’s home),
Plaintiff shall politely communicate this fact to Defendant at
the phone numbers provided to Plaintiff by Defendant. If the
Defendant fails to reduce the level of the music within thirty
(30) minutes of such a request so that it is no longer audible
within Plaintiff’s property, Plaintiff shall be entitled to
capture the level of sound via any reasonable means,
including, but not limited to, video recording, for purposes of
showing that Defendant is in breach of this Agreed Judgment.
*****
6. There shall be no harassment between Plaintiff and
Defendant or guests/visitors of Plaintiff and Defendant.
Should any activity occur which is perceived as harassment,
the harassed party shall notify the opposing party of such
activity via phone call or text message and the opposing party
shall take any and all reasonable steps to ensure such activity
ceases.
*****
9. To the extent one party believes there has been a
breach of this agreed judgment, the agreed upon judicial
remedy shall be to bring a contempt motion in the above-
referenced litigation against the opposing party based on the
terms and conditions of this agreed judgment.
10. Given that the damages for such a breach shall be
difficult to calculate, the parties hereby agree that the
prevailing party in any contempt action occurring as a result
of an alleged breach of this Agreed Judgment shall be entitled
to liquidated damages in the amount of five hundred dollars
($500.00) for each violation of this Agreed Order.
Additionally, the prevailing party shall be entitled to any and
all legal fees incurred as a result of the contempt action.
App. pp. 9-10 (space added between paragraphs 3 and 4).
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On December 21, 2010, Mills filed a motion for rule to show cause, contempt
citation, and damages. Mills alleged that from September 18, 2010 through October 30,
2010, Kimbley violated the Agreed Judgment on thirty-four occasions. There were nine
allegations that Kimbley violated the daytime noise provision of the Agreed Judgment,
two allegations that Kimbley violated the nighttime noise provision,1 and twenty-three
allegations of harassment, most of which involved Kimbley, who smokes two and half
packs a day and has a “hacking” cough, staring at Mills or his guests and coughing
excessively.2 Tr. p. 17. Mills requested liquidated damages in the amount of $17,500 or
$22,000 if the trial court considered some of the violations to be “double violations” for
being both harassment and noise violations. Mills also requested attorney fees and costs.3
The trial court held hearings on the motion on March 9, 2011, and April 11, 2011. 4
On April 14, 2011, the trial court issued an order, which stated that Mills failed to prove
the violations as alleged in the contempt motion. The trial court also found that neither
1
At the hearing, Mills stipulated that one of the nighttime noise allegations was incorrect and should
have read 11:00 a.m. instead of 11:00 p.m. See Tr. pp. 85-86. As for the remaining nighttime noise
allegation, Mills testified that any of the noise after 10:00 p.m. was yelling and not music.
2
An October 14, 2010 allegation of harassment was withdrawn at the hearing, leaving twenty-two
harassment allegations.
3
In the absence of a clear classification of the alleged violations by Mills, we have attempted to classify
them for purposes of our review. Any reclassification of one offense as another would not change our
analysis.
4
Mills apparently recorded the noise violations using a handheld camera. Although a DVD of the
recordings was played at the hearing and Kimbley stipulated to its admissibility, it does not appear that it
was actually admitted into evidence and is not included in the record on appeal. Even if was admitted
into evidence and for some was inadvertently omitted as an exhibit in the record on appeal, “[t]he party
claiming the error has the burden to establish a complete and accurate record.” Smith v. Convenience
Store Distributing Co., 583 N.E.2d 735, 739 (Ind. 1992). Regardless, when the DVD was played during
the hearing, Mills acknowledged that some of the clips are difficult to hear and that the music was louder
in person. See Tr. p. 69.
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party was entitled to liquidated damages or legal fees incurred as a result of the contempt
action. Both parties now appeal.
Analysis
Mills argues that the trial court erroneously denied his contempt petition, and
Kimbley asserts he, as the prevailing party, is entitled to liquated damages and attorney
fees. “The trial court enjoys discretion in determining whether a party is in contempt of
court, and its decision will be reversed only for an abuse of discretion.” Mitchell v.
Mitchell, 871 N.E.2d 390, 394 (Ind. Ct. App. 2007). “A court will be deemed to have
abused its discretion when its decision is against the logic and effect of the facts and
circumstances before the court or is contrary to law.” Id. When reviewing a trial court’s
determination on contempt matters, we will neither reweigh evidence nor judge witness
credibility, and we will affirm unless, after a review of the entire record, we have a firm
and definite belief that a mistake has been made by the trial court. Id.To the extent the terms of the Agreed Judgment are at issue, it is well settled that
the construction of settlement agreements is governed by contract law. McGraw v.
Marchioli, 812 N.E.2d 1154, 1157 (Ind. Ct. App. 2004). “Construction of the terms of a
written contract is a pure question of law for the court, and we conduct a de novo review
of the trial court’s conclusions in that regard.” Id. “The goal of contract interpretation is
to ascertain and give effect to the parties’ intent as reasonably manifested by the language
of the agreement.” Reuille v. E.E. Brandenberger Const., Inc., 888 N.E.2d 770, 771 (Ind.
2008). When the contract language is clear and unambiguous, it must be given its plain
and ordinary meaning. Id.6
I. Contempt Allegations
A. Noise Violations
Lumping all of the alleged noise violations together, Mills argues daytime noise
and nighttime noise “distinctions are unnecessary as the evidence submitted, which was
not contradicted, is that Mills’ claims are all related to noise that he perceived as
unreasonable and that was audible in and throughout his house regardless of whether said
noise occurred during the day or night.” Appellant’s Br. p. 11. Mills claims:
The undisputed evidence provides that (1) the noise
complained of comes from Kimbley, (2) the noise complained
of was audible in the house, (3) that Mills perceived the noise
as being unreasonable, (4) that Mills sent a text to remedy the
situation, (5) Mills, each time, waited at least thirty (30)
minutes before videotaping the noise supporting the violation,
and (6) that the violation continued at least the same level of
noise or louder thereafter.
Id.In making this argument, however, Mills fails to cite any portion of the transcript
supporting his assessment of evidence related to each of the eleven noise-related
allegations. Such citations are especially important here, where the trial court specifically
found that Mills failed to prove the various allegations in his motion. “It is a cardinal rule
of appellate review that the appellant bears the burden of showing reversible error by the
record, as all presumptions are in favor of the trial court’s judgment.” Marion-Adams
School Corp. v. Boone, 840 N.E.2d 462, 468 (Ind. Ct. App. 2006). Without specific
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citations to evidence supporting each allegation, Mills has not established that the trial
court erred in finding that he failed to prove the alleged noise violations.5
B. Harassment
Regarding the numerous allegations of harassment, Mills claims:
The undisputed facts demonstrate that (1) the coughing and
steering [sic] incidents were perceived by Mills as harassing,
and (2) that Mills sent a text to stop the coughing and steering
[sic], and (3) that Kimbley, although he knew that Mills
perceived these actions as being harassing, refused to take
any steps or otherwise respond to the text on the ground that
his actions, which he does not deny, were allegedly not meant
to be harassing.
Appellant’s Br. p. 12. Again, Mills does not direct us to specific evidence supporting
each of the twenty-two allegations of harassment. Without specific citations to evidence
supporting each allegation, Mills has not established that the trial court erred in finding
that he failed to prove the harassment allegations.
To the extent Mills argues that the trial court misinterpreted this provision of the
Agreed Judgment, we are not persuaded. The harassment provision states:
There shall be no harassment between Plaintiff and Defendant
or guests/visitors of Plaintiff and Defendant. Should any
activity occur which is perceived as harassment, the harassed
party shall notify the opposing party of such activity via
5
Regarding the daytime noise allegations, Mills’s application of the allegedly undisputed facts
completely ignores the first two sentences of this provision, which states, “Defendant shall be entitled to
use his property in accordance with all local ordinances and state statute. Specifically, Defendant shall be
permitted to play music and/or create noise outside between the hours of 7:00 A.M. and 10:00 P.M. as
permitted by Indianapolis Marion County Code, Section 391-302(c)(2).” App. p. 9. At the hearing,
Kimbley testified that, when he received a second text from Mills only four days after the Agreed
Judgment was approved, he called the police, explained the situation, and asked what a reasonable level
of music was. Kimbley testified that a police officer walked his property, and told Kimbley not to go
above a certain level, which Kimbley marked on his radio. Kimbley testified that he then played the
stereo at that level. It was for the trial court to weigh the evidence and assess witness credibility, and we
may not reweigh or reassess such.
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phone call or text message and the opposing party shall take
any and all reasonable steps to ensure such activity ceases.
App. p. 10. Quite simply, the Agreed Judgment did not require Kimbley to respond to
Mills’s text, nor are we convinced that the single September 19, 2010 text to stop the
coughing fits and staring was sufficient notice of the twenty-two allegations of
harassment. Without more, Mills has not established that the trial court’s conclusion that
he did not prove the allegations of harassment was against the logic and effect of the facts
and circumstances before the court or is contrary to law.
II. Liquidated Damages and Attorney Fees
On cross-appeal, Kimbley argues that he is entitled to liquidated damages of at
least $17,500.00 for the alleged violations and attorney fees based on the terms of the
Agreed Judgment. Mills has not filed a reply brief responding to this argument. Where
an appellant fails to file a response to a cross-appeal, the cross-appellant may prevail if he
or she presents a prima facie case of error. Carter-McMahon v. McMahon, 815 N.E.2d
170, 179 (Ind. Ct. App. 2004). “Prima facie error” is defined as error at first sight, on
first appearance, or on the face of it. Id.Regarding liquidated damages, the Agreed Judgment provides:
Given that the damages for such a breach shall be difficult to
calculate, the parties hereby agree that the prevailing party in
any contempt action occurring as a result of an alleged breach
of this Agreed Judgment shall be entitled to liquidated
damages in the amount of five hundred dollars ($500.00) for
each violation of this Agreed Order.
App. p. 10. Kimbley contends, “The plain language states that the award of liquidated
damages should be made to a prevailing party and that the award should be for five
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hundred dollars ($500.00) per violation.” Appellee’s Br. p. 11. Although we generally
agree with Kimbley’s assessment of the Agreed Judgment, Kimbley did not prove any
violations here; instead, there were simply Mills’s unproven allegations of violations.
We do not believe the parties intended to permit the recovery of damages where
violations were alleged but not proven. Had the parties so intended, they could have
included such language in the Agreed Judgment. Based on the plain and ordinary reading
of this provision, we do not believe Kimbley was entitled to liquated damages for each of
the alleged violations.
Regarding attorney fees, the Agreed Judgment provides, “Additionally, the
prevailing party shall be entitled to any and all legal fees incurred as a result of the
contempt action.” App. p. 10. The parties expressly agreed that perceived breaches of
the Agreed Judgment would be remedied by bringing a contempt motion against the
opposing party. See id. Because Kimbley successfully defended against Mills’s
contempt allegations, he has made a prima facie showing that he is entitled to attorney
fees.
As for Kimbley’s claim that he is entitled to attorney fees for successfully
defending against the appeal, the Agreed Judgment provides for the recovery of “any and
all” legal fees incurred as a result of a contempt action. Id. Based on this broad
language, we believe Kimbley has a made a prima facie showing that he is entitled to
recover appellate attorney fees associated with defending the action on appeal.
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Conclusion
Mills has not established that the trial court erroneously denied his contempt
motion. Although Kimbley did not make a prima facie showing that he was entitled to
recover liquidated damages, he has shown that he is entitled to recover attorney fees
associated with defending the contempt action, including appellate attorney fees, and we
remand for the trial court to calculate Kimbley’s attorney fees. We affirm in part, reverse
in part, and remand.
Affirmed in part, reversed in part, and remanded.
KIRSCH, J., and BRADFORD, J., concur.
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