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Wagler v. West Boggs Sewer Dist., Inc.

Court of Appeals of Indiana

April 15, 2015

Norman Wagler, Nathan Wagler, and Janet Wagler, Appellants-Defendants,
v.
West Boggs Sewer District, Inc., Appellee-Plaintiff

Page 171

Appeal from the Daviess Circuit Court. The Honorable Mark R. McConnell, Special Judge. Trial Court Case Nos. 14C01-0902-PL-62 and -64.

ATTORNEY FOR APPELLANT: Dale Arnett, Winchester, Indiana.

ATTORNEYS FOR APPELLEE: Alan S. Townsend, Bradley M. Dick, Bose McKinney & Evans LLP, Indianapolis, Indiana.

Crone, Judge. Friedlander, J., and Kirsch, J., concur.

OPINION

Page 172

Crone, Judge.

Case Summary

¶1 In February 2009, West Boggs Sewer District, Inc. (" West Boggs" ), filed complaints against Norman Wagler and Nathan and Janet Wagler (collectively " the Waglers" ), seeking to require them to connect their respective properties to its sewer system pursuant to Indiana Code Section 8-1-2-125. The statute provides that a not-for-profit public sewer utility, such as West Boggs, may require a property owner to connect to its sewer system if there is an available sanitary sewer within three hundred feet of the property line. Norman entered into an agreed judgment with West Boggs, pursuant to which he agreed to connect to the sewer system. The trial court issued a judgment against Nathan and Janet ordering them to connect to the sewer system. Norman filed a motion to set aside the agreed judgment, which the trial court denied, and he appealed. Nathan and Janet also appealed the judgment against them. The Waglers unsuccessfully litigated their appeals all the way to the U.S. Supreme Court, which denied certiorari in 2014.

¶2 The trial court issued two contempt orders against Norman and two contempt orders against Nathan and Janet based on their failure to comply with the judgments requiring them to connect to the sewer system. Norman appealed the second contempt order against him, and Nathan and Janet appealed the second contempt order against them. These appeals have been consolidated.

¶3 On appeal, the Waglers do not challenge the trial court's findings of contempt. Instead, they claim that a 2012 amendment to Indiana Code Section 8-1-2-125 exempts them from having to connect to the sewer system. We conclude that this is an impermissible collateral attack on the underlying judgments and therefore summarily affirm the contempt orders. West Boggs contends that it is entitled to recover appellate attorneys' fees from the Waglers pursuant to Indiana Appellate Rule 66(E) because of the frivolousness and vexatiousness of their appeal. We agree and therefore remand for a calculation of appellate attorneys' fees to which West Boggs is entitled.

Facts and Procedural History

West Boggs v. Norman

¶4 In February 2009, West Boggs filed a complaint against Norman, seeking to require him to connect to its sewer system per Indiana Code Section 8-1-2-125. In March 2011, the trial court approved an agreed entry and judgment, pursuant to which Norman agreed to connect to the sewer system at his own cost within 90 to 120 days and to be held in contempt if he failed to do so. In April 2011, West Boggs filed a motion for rule to show cause, asking that Norman be held in contempt for failing to comply with the agreed ...


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