Mills v. Kimbley

• Decision Date: 03 June 2015
• Docket Number: No. 49A02–1403–PL–212.,49A02–1403–PL–212.
• Citation: 35 N.E.3d 316 (Table)
• Parties: Gregory J. MILLS, Appellant–Plaintiff, v. Dean KIMBLEY, Appellee–Defendant.
• Court: Indiana Appellate Court

35 N.E.3d 316 (Table)

Gregory J. MILLS, Appellant–Plaintiff

v.Dean KIMBLEY, Appellee–Defendant.

No. 49A02–1403–PL–212.

Court of Appeals of Indiana.

June 3, 2015.

P.Adam Davis Davis & Sarbinoff, LLP Indianapolis, IN, Attorney for Appellant.

Russell L. Brown, Frank D. Otte, Sean A. Brown Clark, Quinn, Moses, Scott & Grahn, LLP Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

BRADFORD, Judge.

Case Summary

[1] Soon after Appellant–PlaintiffGregory Mills moved in next-door to Appellee–DefendantDean Kimbley in 2004, Mills began taking issue with Kimbley's activities, which included the alleged playing of excessively loud music.In 2006, Mills brought suit against Kimbley, alleging trespass, nuisance, and intentional infliction of emotional distress.After the case went up to the Indiana Supreme Court and back, in September of 2010the parties entered into an agreed judgment (“the Order”).The Order included provisions regarding the volume at which Kimbley was allowed to play music on his property and Mills's recourse in the event of violations.

[2] In December of 2010, Mills filed a motion for rule to show cause, contempt citation, and damages (“First Contempt Motion”), in which he alleged several violations of the anti-noise and -harassment provisions of the Order.The allegations of harassment involved coughing, yelling, and/or staring by persons on Kimbley's property directed at those on Mills's property.The trial court denied Mills's motion, in an order ruling that he failed to establish violations (“First Contempt Order”).

[3] In late 2011, Mills filed another motion for rule to show cause, contempt citation, and damages (“Second Contempt Motion”), in which he ultimately alleged approximately 900 additional violations of the Order by Kimbley.Most of the allegations in the Second Contempt Motion involved harassment by coughing, yelling, and/or staring, and Kimbley sought a limine motion preventing Mills from presenting evidence of them on res judicata grounds.The trial court granted Kimbley's motion for limine order, leaving just eighteen allegations of noise violations.Meanwhile, Kimbley had also filed a motion for contempt citation (“the Kimbley Motion”), alleging that Mills had impermissibly videotaped activity on Kimbley's property.

[4] After a hearing, the trial court issued its order (“Second Contempt Order”) on the Second Contempt and Kimbley Contempt Motions, rejecting Mills's allegations, finding some of Kimbley's to have merit, and awarding Kimbley attorney's fees.Mills appeals, arguing that the trial court improperly granted Kimbley's request for a limine order, clearly erred in denying the Second Contempt Motion, and erred in awarding Kimbley attorney's fees.Finding no error, we affirm.

Facts and Procedural History

[5] For background, we refer to the opinion we issued in a previous appeal in this case:

Mills and Kimbley are next-door neighbors.Mills lives at 310 West Edgewood Avenue in Indianapolis, where he has lived since March of 2004.Kimbley lives at 302 West Edgewood Avenue, which is the property adjacent to Mills's property on the east side, where he has lived since 1984.

Within approximately two months of his move to 310 West Edgewood Avenue, Mills began keeping a journal of what in his view were Kimbley's disruptive activities.This journal, subsequently submitted as designated evidence in the instant action, covers Kimbley's activities from May 21, 2004 through September 11, 2006, and is eighty-three pages long.On April 25, 2005, Mills began videotaping Kimbley's and his guests' activities without their permission.Due to Mills's videotaping activities, Kimbley claims to have been deprived the full use and enjoyment of certain portions of his property.

On May 8, 2006, Mills sent Kimbley a letter, in which he demanded that Kimbley not play loud music, permit loud and/or foul language, set off the house alarm, move his trash to Mills's property, enter any part of his property for any reason, contact him or his guests, nor tamper with his fence.In addition, Mills demanded that within seven days of receipt of the letter, Kimbley was to trim certain trees along the fence line and keep the property line clear of any obstructions such as “cinder blocks, mulch, and growth barriers.”App.p. 40.Mills also demanded that within seven days Kimbley remove his sprinkler system, which Mills claimed was on his property, and repair a bare area of his yard, which Mills believed was caused by Kimbley's mulch pile.An inspection report issued by the City of Indianapolis found no violation in the placement of the sprinkler system.

Following Kimbley's receipt of this letter, the parties agreed to participate in a voluntary mediation session with the Marion County Prosecutor's Office.At that session the parties reached an agreement providing, inter alia, that Mills would trim the trees and that Kimbley's music was not to be so loud as to be heard in Mills's home.

In September of 2006, Mills listed his residence for sale through broker Century 21 with a list price of $139,900.Kimbley, accompanied by his son and a friend, toured Mills's residence with a real estate agent when Mills was not present.

Mills v. Kimbley,909 N.E.2d 1068, 1072–73(Ind.Ct.App.2009)(footnote omitted), trans. granted and vacated,932 N.E.2d 1230(Ind.2010).

[6] On October 26, 2006, Mills filed suit against Kimbley, alleging trespass, nuisance, and intentional infliction of emotional distress.On December 3, 2008, the trial court granted summary judgment in favor of Kimbley on all claims.When Mills appealed, we affirmed in part, reversed in part, and remanded with instructions.Id. at 1080.The Indiana Supreme Court granted transfer, vacated Mills's appeal on the basis that the trial court's judgment was not final, and remanded to the trial court for the determination of damages.

[7] Rather than proceed to a hearing on damages, the parties entered into the Order, filed on September 15, 2010, and which provides, in part, as follows:

Plaintiff, Gregory J. Mills, and Defendant, Dean Kimbley, individually, and by counsel, submit the following as an Agreed Judgment to fully and completely dispose of the above captioned litigation.In resolving this matter, the parties hereby agree as follows:

1.This matter is fully and completely resolved by this Agreed Judgment.As part of this Agreed Judgment neither party shall be determined to be the prevailing party in this litigation.However, except as discussed herein, the claims and actions complained of in this matter shall be completely and fully disposed of by this Agreed Judgment.

2.The Plaintiff hereby agrees that neither he, nor any resident or visitor to his home shall contact law enforcement authorities for any activities occurring on Defendant's property relating to noise occurring on Defendant's property or for any other action was included in the litigation herein.

3.Defendant shall be entitled to use his property in accordance with all local ordinances and state statute[s].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, Section391 –302(e)(2)[ (“the Indianapolis Noise Ordinance”) ].Should Plaintiff 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 number 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 Plaintiff's property (include[ing] inside and outside of Pl [ai]ntiff's home) between the hours of 10:00 P.M. and 7:00 A.M. or is playing music and/or creating noise from inside any structures located on his property which is audible from Plaintiff's property (including in side 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.

5.With the exceptions of the situations included in Paragraph 3 and 4 herein, Plaintiff shall not use a videotape or camera to deliberately capture the activities of any person occurring completely on the Defendant's property.

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 cell 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

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