March 8, 2011
Today, the Indiana Court of Appeals issued an opinion resolving a heated dispute between two neighbors in
Lesh v. Chandler, Case No. 44A05-1003-PL-19. When ruling on the dispute, the trial court found the defendant in indirect contempt of court, but did not issue a rule to show cause order before making that finding, as is required by
I.C. § 34-47-3-5. The Court of Appeals held that the trial court's failure to comply with this statute did not prevent it from finding the defendant in indirect contempt of court.
less..
Lesh and the Chandlers live on opposite sides of the Little Elkhart River. Beginning in 2003, Lesh directed loud music and light from a flood light on his property onto the Chandlers' property, and has made derogatory comments toward the Chandlers. In May 2006, the Chandlers sued Lesh for nuisance and were granted a preliminary injunction. The case had a final hearing in October 2009. The trial court never issued a rule to show cause order, but it found Lesh in contempt of the preliminary injunction in its final order. Lesh appealed this and other issues.
When addressing the trial court's failure to issue a rule to show cause order before finding Lesh in indirect contempt of court, the Court noted that the procedure described in I.C. § 34-47-3-5, which includes issuing a rule to show cause order.
The purpose of Ind. Code § 34-47-3-5 is to provide due process rights to someone who has been accused of indirect contempt. The person charged with indirect contempt must be served with a rule of the court against which the contempt was alleged to have been committed, informing the defendant of the facts alleged to constitute the contempt and specifying a time for a hearing.
It was clear that Lesh knew of the preliminary injunction, so the Court addressed "whether Lesh had an opportunity to present to the court why he should not be held in contempt."
At the final hearing, the Chandlers presented evidence in the form of a notebook chronicling disturbances made by Lesh, the CDs originally included with the October 25, 2007, letter [editor, earlier in the opinion the Court described this as a letter that warned Lesh that his conduct was in contempt of the preliminary injunction], and testimony by witnesses indicating Lesh played his music at a volume that could be heard at the Chandlers' house and he uttered derogatory comments toward the Chandlers. As in Lasater, the contempt allegation was pending at the time of the final hearing. Lesh had an opportunity at that time to refute the Chandlers' claims, but he did not.
Lesh did not testify at the final hearing, but instead offered two witnesses. One testified regarding the sound level of Lesh's music as measured by the witness' specialized equipment, and the other testified about the Chandlers' use of their lawn mower and leaf blower. There was ample evidence presented during the final hearing to support a finding of contempt. Therefore, Lesh was not prejudiced if the trial court did not comply with Ind. Code § 34-47-3-5, and the trial court did not abuse its discretion in finding Lesh in contempt of the preliminary injunction.
Thus, if a party is challenging a finding of indirect contempt on the basis that the trial court did not comply with I.C. § 34-47-3-5, that party must demonstrate that they have been prejudiced by the trial court's failure to follow those statutory procedures.
Lessons:
- A trial court's failure to follow all the statutory procedures when making a finding of indirect contempt is only reversible upon a showing of prejudice.
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