May 9, 2011
On May 6, 2011, the Indiana Court of Appeals issued its opinion in
Witt v. Jay Petroleum, Inc., ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 38A02-0912-CV-129, a case with an interesting procedural posture. It was an appeal from a finding that a plaintiff was in contempt of a temporary restraining order that was resolving a discovery dispute. The Court did not like this at all.
less..
This case arose out of litigation concerning environmental contamination of property in Portland, Indiana. The Witts sued Jay to seek contribution to the costs of investigation
and remediation of the contamination. Jay wished to perform testing at the property, but the Witts refused. Jay then filed a motion for a TRO preventing the Witts from remediating the property until Jay was allowed access to the site to perform tests and the trial court granted the order.
The Witts determined that it was necessary to continue to perform some work at the site, so that it was not left in an unsafe condition. Deputies then twice arrived at the scene, ordering work to cease. Jay moved for a finding of contempt, based on the Witts' failure to stop work until ordered to do so by the deputies. The trial court found the Witts in contempt and awarded fees to Jay.
On appeal, the Court acknowledged that it could not review the decision to grant the TRO, but strongly criticized the trial court's decision to enter the TRO. The Court noted that the TRO corresponded "more closely and accurately with the use of a court order to resolve discovery disputes under
Trial Rule 37 or a protective order under
Trial Rule 26 than it does with the temporary restraining order-to-preliminary injunction path." It was improper for the trial court to use a TRO to resolve a discovery dispute.
We thus strongly disagree with Jay's contention at oral argument that a temporary restraining order is "one way" of obtaining discovery. It is not. Preliminary injunctions, of which a restraining order is one type, are "remed[ies] … generally used to preserve the status quo as it existed prior to a controversy pending a full determination on the merits of that controversy."
...
In seeking a restraining order more than seven months after the filing of the underlying action, and more than nine months after first learning of the Witts' claims against
it, Jay sought extraordinary relief for what is an ordinary discovery dispute.
...
Rather than follow our trial rules as they apply to such attempts to obtain discovery, Jay instead stepped outside the ordinarily proper course of action when it sought to enjoin the continued remediation of the Witts' property, expressing its concerns that evidence might be lost — though a similar claim was rejected by the highest court of one of our sister States. Jay did so on the heels of an emergency of its own creation, both after it had failed to comport itself according to the Indiana Trial Rules and also after it had failed to respond several months earlier to the Witts’ proposed discovery plan under Jay County's local rules.
In addressing the trial court's decision finding the Witts in contempt, the Court announced that it would be using a
de novo standard of review, because the parties presented the trial court with a paper record.
The de novo standard of review, then, is appropriate where a reviewing court is in as good a position as the trial court to make a decision on a particular issue based upon the evidence presented, particularly where there are facts in dispute but no evidentiary hearing was held.
The Court then reviewed the record and held that the trial court erred in holding the Witts in contempt.
Lessons:
- You cannot use a TRO in order to obtain discovery.
- The Court of Appeals will use a de novo standard of review when reviewing a contempt citation if the issue was presented on a paper record.
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