Jim Brugh v. James L. Sailors, Cass County Commission

FILED
Aug 02 2019, 5:34 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEES
Jim Brugh Jeffrey D. Stanton
Logansport, Indiana Logansport, Indiana
Yamir Gonzalez Velez
Logansport, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jim Brugh, August 2, 2019
Appellant-Plaintiff, Court of Appeals Case No.
18A-PL-2730
v. Appeal from the Cass Superior
Court
James L. Sailors, Cass County The Honorable James K.
Commission, et al., Muehlhausen, Judge
Appellees-Defendants Trial Court Cause No.
09D01-1410-PL-36
Altice, Judge.
Case Summary
[1] In 1922, Cass County dedicated a World War I memorial (Memorial Home) in
Logansport. The Board of Trustees for Memorial Home stopped functioning
around 2001 and the County took over maintenance, but Memorial Home fell
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into disrepair. In 2014, the Cass County Commissioners deeded Memorial
Home to the City of Logansport without reference to the property’s dedicated
purpose. Jim Brugh, a concerned citizen, filed a complaint for declaratory
judgment against the County and the City, challenging the transfer. Brugh’s
suit resulted in entry of an agreed judgment between the parties in February
2016 (the Agreed Judgment).
[2] Brugh filed a petition for enforcement of the Agreed Judgment in May 2018,
arguing that the City and County had yet to comply. Additionally, Brugh
alleged that the County Council should be found in contempt due to its refusal
to commit $62,500 toward improvements for Memorial Home as part of a
second grant application.
[3] Following a hearing, the trial court denied Brugh’s petition for enforcement and
found that the County Council was not in contempt. On appeal, Brugh argues
that the trial court failed to enforce the Agreed Judgment as written and abused
its discretion by not finding the County Council in contempt.
[4] We affirm in part, reverse in part, and remand.
Facts & Procedural History
[5] Over 1000 Cass County citizens served as soldiers or sailors in World War I.
After the war, in 1919, the Indiana Legislature passed an act in Chapter 115 of
the Acts of 1919 (the Act) authorizing the several counties and cities within the
state to finance, build, manage, and maintain memorials related to the war.
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Cass County citizens petitioned the County for such a memorial, and the Cass
County Commissioners granted the petition in June 1920 and determined that
$35,000 should be expended for this public purpose. In July, the newly-
appointed Board of Trustees for the memorial successfully petitioned the
County to purchase the Baldwin homestead at 7th and Market Streets in
Logansport for the memorial site. The County issued bonds, as allowed by the
Act, to cover the purchase price. On May 14, 1922, the County officially
dedicated Memorial Home as a war memorial. Memorial Home was
maintained by the Board of Trustees and the County and utilized by the public
for the next several decades.
[6] By the early 2000s, the building on Memorial Home’s grounds had fallen into
disrepair and the Board of Trustees ceased to exist. The County took over
maintenance of the building, and weddings and public events continued to be
held on the grounds. In 2010, after receiving a federal Community
Development Block Grant (CDBG) for a feasibility study, the County hired an
architect and design firm to study the feasibility of expanding the use of
Memorial Home as a community center. The resulting 2010 Master Plan made
recommendations, provided options, and estimated the total project cost at
about $1.5 million, which would escalate at 4% per year.
[7] On June 16, 2014, the County Commissioners transferred Memorial Home, by
quit claim deed, to the City of Logansport. The deed did not make reference to
the property’s dedicated purpose. In October of that year, Brugh filed a
complaint for declaratory judgment against the County and injunctive relief
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against the City. Brugh argued that the transfer was invalid and that the Board
of Trustees should be reappointed to control Memorial Home. Further, Brugh
asked the trial court to direct the County Commissioners to expend funds to
maintain and repair Memorial Home “as required by the trustees, pursuant to
the law.” Appellant’s Appendix Vol. 2 at 20. Finally, pending outcome of the
case, Brugh requested that the City be enjoined from transferring title to
Memorial Home or altering the structure in any way.
[8] During a summary judgment hearing in November 2015, the parties asked to
recess the matter to see if it could be resolved by agreement. Thereafter, on
February 29, 2016, the parties’ Agreed Judgment, which was drafted by Brugh,
was accepted by the trial court. The Agreed Judgment began by setting out
certain details of the Act and the history of the establishment of Memorial
Home. Within the Agreed Judgment, the County and City expressly agreed
that “Memorial Home is dedicated as a war memorial and shall be preserved
for that purpose, pursuant to their contract.” Id. at 67. To this end, the Agreed
Judgment required the following of the County and City:
6. The City will execute a new deed which transfers Memorial
Home to itself and to the Cass County Commissioners, jointly;
that deed will refer to the dedication and preservation of
Memorial Home as a war memorial, pursuant to I.C. 10-18-4-
2(b)(3) and I.C. 10-18-4-12.
7. The City of Logansport and the Cass County Commissioners
shall enter into a contract related to the establishment of the joint
World War memorial, pursuant to I.C. 10-18-4-11(e), including,
but not limited to, subsection (5) which mandates the provision:
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“(5) that the necessary cost and expenses for the management,
maintenance, repairs, and improvement of the World War
memorial shall be paid by the county and city in the same
proportion that they contribute to the establishment of the
memorial.”
Id. at 67-68.
[9] Although the City did not execute a deed as required by the Agreed Judgment,
the City and County proceeded as joint owners of Memorial Home thereafter.
In 2016, a Board of Trustees (the Board) was appointed, with Mike Fincher
serving as president from November 2016 through January 2018. Fincher
worked closely with Deputy Mayor Mercedes Brugh regarding the maintenance
and repair of Memorial Home. He walked through the building with the
architect and reviewed the 2010 Master Plan and a privately-funded, updated
version of the plan (the 2017 Plan Update). The 2017 Plan Update, at the
request of Deputy Mayor Brugh, broke the project up into three phases – a
stabilization phase, a rehabilitations phase, and an upgrades phase. The total
cost of the project for all phases was estimated to be between $1.7 million and
$2 million. There was also an environmental site assessment conducted for the
County in 2016, which estimated environmental remediation of Memorial
Home to cost around $70,000.
[10] After conferring with the Board and county and city officials, the City took the
lead in preparing a CDBG grant application in 2017 in the amount of $633,050,
which would be used to fix the roof, stabilize the foundation, and complete
“some ADA work”. Transcript Vol. II at 76. The actual grant would be
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$500,000, and the City and County would equally split the match amount of
$125,000 and the rest would be raised through private donations and the
Community Foundation. By March 2017, both the City and County had
committed to pay their respective match amounts of $62,500 in a joint attempt
to secure the CDBG grant.
[11] While the CDBG grant application was pending, the City and County entered
into a joint operating agreement in July 2017 (the Operating Agreement). The
Operating Agreement referenced the prior litigation and the decree that the City
and the County “work together for the mutual benefit of operating the building
known as [Memorial Home], as a war memorial, a tribute to the men and
women from Cass County who served their country.” Appellant’s Appendix Vol.
2 at 110. The Operating Agreement, which was rather detailed with eighteen
separate articles, addressed the appointment of members to the Board, as well
as the specific powers, duties, and goals of the Board. We find the following
two articles of the Operating Agreement to be of particular note:
ARTICLE 5
The President of the Cass County Commissioners and the
Logansport Mayor may hire a salaried Executive
Director/Manager (ED/M) upon mutual agreement by both the
County and City Councils who will be directed by the
Commissioner President and Mayor to manage [Memorial
Home]. The County and City Councils shall establish the
ED/M’s compensation and benefits package. The Board and the
ED/M shall set policy for the use of the facility. The Board will
work in unison with the ED/M. It will be the goal of the Board
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and ED/M to secure grant funding, public and private donations,
and user fees. It will be the goal of the Board and the ED/M to
operate [Memorial Home] as financially independent of the city
and county annual budgets with four exceptions:
1. Cass County and Logansport will be equally
responsible for the initial shared costs of property
insurance.
2. If approved, Cass County and Logansport will be
equally responsible for the ED/M’s salary and benefits.
3. Any one-time expenses associated with matching
grants, or capital improvements that are not considered
ongoing continuous expenses, will be borne equally by
the County and City if the applications are agreed upon
by Logansport and Cass County.
4. All utility costs not paid directly as a payment in lieu of
taxes by the Logansport Municipal Utilities will be
shared equally by the County and City.
****
ARTICLE 10
It is the duty of the Board and its ED/M to endeavor to execute
the terms of an agreed upon long-term master plan for [Memorial
Home], to secure funding from private and public sources and
grants for that work, and to update the public and public officials
regularly on the progress of completing work on the master plan
when this agreement takes effect. It is the intention of the joint
agreement to require an ongoing maintenance and capital
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improvement plan for [Memorial Home] after the completion of
the master plan.
Id. at 111-12. Article 18 of the Operating Agreement provided that the County
and City would obtain a joint deed on Memorial Home’s building and property.
[12] In late 2017, the CDBG application was rejected. Thereafter, several city and
county officials, Fincher, and others attended a meeting to obtain feedback
from grant program officials. On November 17, 2017, the County Council
voted not to commit money to a second CDBG grant attempt. Council
members expressed concern that the Board did not have a plan regarding use of
the building and that even if the County committed the $62,500 for the match,
the Board still wanted another $750,000 to complete the project. 1
[13] On May 18, 2018, under the 2014 cause number, Brugh filed a petition to
enforce the Agreed Judgment and for determination as to whether the
Operating Agreement conforms to law. Brugh alleged that a joint deed had not
been written and that the Operating Agreement failed to include a description
of the costs to repair the Memorial Home and apportion those costs between
the City and County. Additionally, Brugh alleged in his petition that the
County Council had engaged in contemptuous conduct by its “refusal to fund
the memorial as part of the CDBG application”. Id. at 79.
1
On August 7, 2017, on request of the Board, the Common Council of the City passed a resolution to
commit up to $1,000,000 toward repair of Memorial Home on the condition that the County Council
commit to match the funds dollar for dollar. The County has made no such commitment.
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[14] The trial court held an evidentiary hearing on August 28, 2018. Fincher,
Deputy Mayor Brugh, County Commissioner Jim Sailors, County Council
President George Stebbins, and the County’s superintendent of buildings
Richard Gundrum testified at the hearing. In addition to the facts as set out
above, evidence was submitted that since the beginning of 2017, the County
had been contributing to maintenance of Memorial Home, including utilities,
roof repairs, and other expenses that were shared with the City. The County
had also provided a furnace for Memorial Home to prevent mold from
reoccurring following remediation by a volunteer. In all, the County had
contributed up to $40,000. The building, however, remained closed to the
public. Commissioner Sailors testified that the County plans to maintain and
improve Memorial Home “as we can afford to do it” and “as our constituents
want us to do.” Transcript Vol. II at 93. Commissioner Sailors noted further
that the County was currently needing to expand the jail, which was estimated
to cost over $17 million.
[15] On November 6, 2018, the trial court issued its order in favor of the City and
County. The trial court found that there had been a “good faith effort” by both
entities to comply with the Agreed Judgment and the Operating Agreement.
Appellant’s Appendix Vol. 2 at 11. The court also found that the County Council
“acted within it’s [sic] authority as the fiscal branch of county government”
and, thus, was not in contempt. Id. Brugh now appeals. Additional
information will be provided below as needed.
Discussion & Decision
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[16] As a consent judgment, the Agreed Judgment is both contractual, in that it is an
agreement between the parties settling the underlying dispute, and an entry of
judgment by the court. See Stenger v. LLC Corp., 819 N.E.2d 480, 482 (Ind. Ct.
App. 2004), trans. denied. A trial court that adopts a consent judgment retains
jurisdiction to interpret the terms of the agreement and to enforce them. See
Whittaker v. Whittaker, 44 N.E.3d 716, 719 (Ind. Ct. App. 2015).
[17] When reviewing the construction of the terms of a written contract, which is a
pure question of law, our standard of review is de novo. Id.The interpretation and construction of a contract is a function for
the courts. In construing a consent judgment, the court must
determine and effectuate the intent of the parties. If the language
of the agreement is unambiguous and the intent of the parties is
discernible from the written contract, the court must give effect to
the terms of the contract. A contract is ambiguous if a reasonable
person would find the contract subject to more than one
interpretation. The terms of a contract are not ambiguous merely
because the parties disagree as to their interpretation. Where the
terms of a contract are clear and unambiguous, the terms are
conclusive and we will not construe the contract or look at
extrinsic evidence, but will merely apply the contractual
provisions.
Stenger, 819 N.E.2d at 484 (citations omitted). “The meaning of a contract is to
be determined from an examination of all of its provisions, not from a
consideration of individual words, phrases, or even paragraphs read alone.”
Evan v. Poe & Assocs., Inc., 873 N.E.2d 92, 98 (Ind. Ct. App. 2007).
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[18] The Agreed Judgment required the City and County to do two things with
respect to Memorial Home. First, pursuant to Paragraph 6 of the Agreed
Judgment, the City was obligated to execute a deed of dedication transferring
Memorial Home jointly to itself and the County and expressly referring to the
dedication and preservation of Memorial Home as a war memorial pursuant to
I.C. §§ 10-18-4-2(b)(3) 2 and 10-18-4-12. 3 The City and County acknowledged at
the evidentiary hearing that no such deed had issued. 4 Accordingly, we reverse
the trial court’s determination that the City had complied with Paragraph 6.
On remand, if the City does not provide the trial court with evidence that a
joint dedication deed has been executed, 5 the trial court shall direct
performance of this contractual requirement.
[19] The second requirement in the Agreed Judgment is set out in Paragraph 7,
which specifies that the City and County
shall enter into a contract related to the establishment of the joint
World War memorial, pursuant to I.C. 10-18-4-11(e), including,
2
This provision provides a city with the power to “[j]oin with the county in which the city is located to: (A)
acquire by purchase, donation, or condemnation of interests in real property; (B) construct and maintain on
the real property a joint city and county World War memorial; and (C) use the real property for other public
purposes ….”
3
This statute addresses the establishment of a board of trustees for a joint city and county world war
memorial.
4
A judgment quieting title to the property in the name of the City and County was entered in May 2017.
This, however, did not satisfy the Agreed Judgment’s deed requirement because the quiet title decree did not
contain any reference to the dedication and preservation of Memorial Home.
5
The County asserts in footnote 1 of its brief that the City executed such a deed on December 12, 2018,
which was after the hearing and after the trial court issued its order. The record before us, however, is devoid
of any evidence in this regard, and the City does not make a similar assertion on appeal.
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but not limited to, subsection (5) which mandates the provision:
“(5) that the necessary cost and expenses for the management,
maintenance, repairs, and improvement of the World War
memorial shall be paid by the county and city in the same
proportion that they contribute to the establishment of the
memorial.”
Appellant’s Appendix Vol. 2 at 68.
[20] Brugh asserts, and we agree, that Paragraph 7 of the Agreed Judgment required
the City and County to enter into a contract for the preservation and
maintenance of Memorial Home. They did just that in the Operating
Agreement. This agreement established the Board and detailed the powers,
duties, and goals of the Board. Article 3 required Board members to “act in the
best interest of the community to maintain the building as a War Memorial and
a National Register of Historic Places structure accessible to the general
public.” Id. at 110. Article 4 made it a “duty of the Board to operate
[Memorial Home] as a 501(c) 3, nonprofit organization” and submit monthly
reports to City and County officials on the financial progress and physical
condition of the building. Id. The Operating Agreement made clear that a goal
for Memorial Home was for it to be usable by the public and ADA compliant.
In this vein, Article 10 required the Board (and the ED/M, if hired pursuant to
Article 5)
to endeavor to execute the terms of an agreed upon long-term
master plan for [Memorial Home], to secure funding from private
and public sources and grants for that work, and to update the
public and public officials regularly on the progress of completing
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work on the master plan when this agreement takes effect. It is
the intention of the joint agreement to require an ongoing
maintenance and capital improvement plan for [Memorial
Home] after the completion of the master plan.
Id. at 112.
[21] Finally of note, Article 5 addressed the potential hiring of a salaried ED/M of
Memorial Home, who would work with the Board to “set policy for the use of
the facility” and to “secure funding, public and private donations, and user
fees.” Id. at 111. The express goal was to operate Memorial Home as
financially independent of the City and County’s annual budgets with the
following four exceptions: (1) the City and County will equally share the initial
costs of property insurance; (2) if approved, they will be equally responsible for
the ED/M’s salary and benefits; (3) one-time expenses associated with
matching grants, or capital improvements that are not considered ongoing
continuous expenses, will be borne equally by the County and City if the
applications are agreed on by the County and City; and (4) utility costs will be
shared equally.
[22] Brugh complains that the Operating Agreement did not go far enough. He
claims that the Operating Agreement was required to include “a physical plan”
for Memorial Home “including the reference to the cost to implement that plan
and the apportionment of the cost of that project.” Appellant’s Brief at 19. The
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Agreed Judgment, however, did not require such specificity nor does the
referenced statute. 6
[23] I.C. § 10-18-14-11(e) provides:
If the county and city determine to establish a joint World War
memorial, then the board of public works, acting for the city with
the approval of the mayor, shall execute a contract on behalf of
the city with the county. The contract must provide as follows:
(1) For the acquisition of real property interests and the
construction on the real property of a joint World War
memorial suitable for the county and city.
(2) For the definite and respective parts of the total cost of
the World War memorial that will be paid by the county
and by the city and the time and manner of the payments.
(3) That the acquisition of the real property and the
execution of all necessary contracts for the construction of
the joint World War memorial shall be made by a board of
trustees, consisting of five (5) members, to be appointed
and have the powers and perform the duties as provided in
this chapter.
(4) That the total cost of the acquisition of the real
property for the joint World War memorial and the
6
Without explanation, Brugh consistently directs us to I.C. § 10-18-2-10(e), which is similar in many respects
to I.C. § 10-18-4-11(e) but is not the statute expressly referenced in the Agreed Judgment, which Brugh
drafted.
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construction of the memorial may not exceed the sum of
the following:
(A) The amount appropriated for the memorial by
the city and by the board of commissioners of the
county.
(B) Any amounts donated, contributed, or received
by the city and by the county for the purpose of the
World War memorial.
(5) That the necessary cost and expenses for the management,
maintenance, repairs, and improvement of the World War
memorial shall be paid by the county and city in the same
proportion that they contribute to the establishment of the
memorial.
(6) Any other provisions that may be agreed upon between
the county and the city consistent with this chapter.
Id. (emphasis supplied).
[24] The difficulty with applying the whole of I.C. § 10-18-4-11(e) in this case is that
Memorial Home has already been established, as it was dedicated in 1922 by
the County. Thus, the bulk of the statutory provisions, which deal with the
acquisition of real property, construction of the memorial on said property, and
the costs of acquisition of the real property and of construction, do not really
apply here. This is likely why the Agreed Judgment only expressly referenced
subsection (5), which addresses the costs and expenses for the management,
maintenance, repairs, and improvement of the memorial. With respect to this
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subsection, the Operating Agreement indicated that the City and County would
share equally the costs of property insurance and utilities, the ED/M’s salary
and benefits, and any one-time expenses associated with matching grants or
capital improvements agreed upon by both parties. As noted above, the City
and County also indicated in the Operating Agreement an intent to obtain
funding and execute, through the Board and, if hired, the ED/M, the terms of
an agreed-upon long-term master plan and to require ongoing maintenance and
capital improvement of Memorial Home.
[25] We reject Brugh’s request for us to read into the Agreed Judgment and I.C. §
10-18-4-11(e) a requirement that the Operating Agreement include a detailed
plan for maintenance, repair, and improvement of Memorial Home. The 2017
Updated Plan, which was privately funded, indicates that improvements to
Memorial Home could cost upwards of $2 million. While they continue to
fund maintenance of Memorial Home, it is within the City and County’s
discretion, with input from the Board and the ED/M, to determine how, when,
and in what amount costly improvements will be made. We have no authority,
nor does Brugh, to require the City and County to each allocate $1 million
toward rehabilitation of Memorial Home, which is essentially what Brugh
desires. 7
7
Brugh notes that Fincher, as president of the Board, requested $1 million each from the City and County.
While the City’s Common Council resolved to spend that amount over the next two years, Brugh asserts,
“The County did not cooperate.” Appellant’s Reply Brief to Defendant City at 8. While true, this fiscal decision
was wholly within the County’s prerogative.
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[26] Finally, we address Brugh’s claim that the trial court abused its discretion by
failing to find the County Council in contempt. “It is soundly within the
discretion of the trial court to determine whether a party is in contempt[.]”
G.G.B.W. v. S.W., 80 N.E.3d 264, 268 (Ind. Ct. App. 2017), trans. denied.
Additionally, because the trial court denied Brugh’s petition, Brugh appeals
from a negative judgment. See id. at 269. “In such circumstances, we will
reverse the judgment only if it is contrary to law – where the evidence leads to
but one conclusion and the trial court reached the opposite conclusion.” Id.
[27] To be held in contempt for failing to follow a court order, a party must have
willfully disobeyed the court order. City of Gary v. Major, 822 N.E.2d 165, 170
(Ind. 2005). Further, the order “must have been so clear and certain that there
could be no question as to what the party must do, or not do, and so there could
be no question regarding whether the order is violated.” Id.[28] Brugh has wholly failed to establish contempt. The record reflects that the
County Commissioners committed a $62,500 match toward the first CDBG
grant application. When this application failed, it was communicated by
Fincher to the County Council that the Board sought a commitment not just for
the $62,500 match for a second application “but they want[ed] to know that
[the Council was] willing to put another seven hundred and fifty thousand into
it [] to finish the job” after obtaining the grant. Exhibits Vol. III at 71. The
County Council discussed the matter, including that the County had other
major expenses on the horizon – expansion of the county jail – and that the
Board did not have a sufficient plan for Memorial Home. As a result, the
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County Council determined that it was not prepared, at the time, to commit
over $800,000 in funds toward renovation of Memorial Home. We agree with
the trial court that the County Council acted within its authority as the fiscal
branch of county government and did not in any way willfully disobey the
Agreed Judgment.
[29] We affirm in part, reverse in part, and remand for further proceedings regarding
the enforcement of the deed provision of the Agreed Judgment.
Kirsch, J. and Vaidik C.J., concur.
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