Wagler v. W. Boggs Sewer Dist., Inc.

• Decision Date: 29 November 2012
• Docket Number: No. 14A01-1109-PL-427,14A01-1109-PL-427
• Parties: TERRY and LAURA WAGLER, LARRY and JENNIFER WAGLER, NORMAN WAGLER, and JANET and NATHAN WAGLER, Appellants-Defendants, v. WEST BOGGS SEWER DISTRICT, INC., Appellee-Plaintiff.
• Court: Indiana Appellate Court

TERRY and LAURA WAGLER, LARRY and JENNIFER WAGLER, NORMAN WAGLER,and JANET and NATHAN WAGLER, Appellants-Defendants,

v.WEST BOGGS SEWER DISTRICT, INC., Appellee-Plaintiff.

No. 14A01-1109-PL-427

COURT OF APPEALS OF INDIANA

November 29, 2012

FOR PUBLICATION

ATTORNEY FOR APPELLANTS:

DALE W. ARNETT

Winchester, Indiana

ATTORNEYS FOR APPELLEE:

ALAN S. TOWNSEND

STEPHEN C. UNGER

Bose McKinney & Evans LLP

Indianapolis, Indiana

CONSOLIDATED APPEAL FROM THE DAVIESS CIRCUIT COURT

The Honorable Gregory A. Smith, Judge

The Honorable Mark R. McConnell, Special Judge

Cause Nos. 14C01-1003-PL-121, 14C01-1003-PL-122, 14C01-0902-PL-62, 14C01-0902- PL-64

OPINION - FOR PUBLICATION

BROWN, Judge This is a consolidated appeal from various proceedings in which the West Boggs Sewer District ("West Boggs") brought complaints against Terry and Laura Wagler ("Terry & Laura"), Larry and Jennifer Wagler ("Larry & Jennifer"), and Norman Wagler (collectively, the "Waglers"), as well as Janet and Nathan Wagler ("Janet & Nathan," and together with the Waglers, the "Appellants"),¹ pursuant to Ind. Code § 8-1-2-125(d) (2004),² to compel Appellants to connect to its sewer system (the "Sewer System"). The Waglers appeal from the denial of their respective Rule 60(B) motions to set aside judgment, and Janet & Nathan appeal from the trial court's entry and judgment following a bench trial. The Appellants present multiple issues which we revise and restate as:

I. Whether the court abused its discretion by denying the Waglers' motions for relief from judgment pursuant to Ind. Trial Rule 60(B); and

II. Whether the court erred in directing Janet & Nathan to connect to the Sewer System.

Additionally, West Boggs appeals the trial court's denial of its requests for an award of attorney fees and costs against each party that filed an Ind. Trial Rule 60(B) motion, and it requests that we award it appellate attorney fees against each of the Appellants. We affirm.

FACTS AND COURSE OF PROCEEDINGS

West Boggs, a not-for-profit utility, installed sanitary sewer infrastructure (the "Sewer System") adjacent to parcels of property owned by the Appellants, who are members of an Old Order Amish community in Loogootee, Indiana.³ On September 4, 2008, an attorney acting on behalf of West Boggs sent letters to Norman and Janet & Nathan by certified mail which stated in part:

Pursuant to I.C. §8-1-2-125, a not for profit utility, such as [West Boggs], may require connection to its sewer system of property producing sewage or similar waste and require the discontinuance of use of privies, cesspools, septic tanks, and similar structures, if there is an available sanitary sewer within three hundred feet of the property line. [West Boggs'] sanitary sewer facilities are within three hundred feet (300) of your property line, and [West Boggs] is hereby notifying you that the system is now operational and that connection should be made by this property to [West Boggs'] system on or before December 04, 2008.

Please contact the [West Boggs] office to arrange connection or with any questions you might have regarding the utility or this process. . . .

Norman's Appendix at 106; Janet & Nathan's Appendix at 85.⁴ On February 10, 2009, West Boggs filed complaints against each requesting an order requiring them to "promptly" connect to the Sewer System and pay all of the associated costs. Norman's Appendix at 104-105; Janet & Nathan's Appendix at 83-84.

On March 2, 2009, Marilyn A. Hartman entered appearances on behalf of both Norman and Janet & Nathan and requested an extension of time to answer the complaint, which was granted. On April 2, 2009, both Norman and Janet & Nathan filed answers and motions for change of venue from the judge, and on April 14, 2009, the court granted their motions. The court directed that the defendants were to strike first from a panel of three prospective judges, but they failed to do so. On November 6, 2009, West Boggs filed its strike along with motions to set a pre-trial conference. On January 26, 2010, West Boggs filed a Request for Court to Strike from Panel on Behalf of Defendants in each case, and the next day, January 27, 2010, both Norman and Janet & Nathan filed their strike. On March 1, 2010, Judge Mark R. McConnell assumed jurisdiction over those cases.

Also, on December 2, 2009, West Boggs initiated contact with Terry & Laura and Larry & Jennifer by sending letters by certified mail making statements similar to the previous letters and specifically stating that West Boggs "is hereby formally notifying you that the system is operational and that connection should be made by this property to [its] system on or before March 01, 2010." Volume I Appendix at 135; Volume II Appendix at 274. On March 19, 2010, West Boggs filed complaints against Terry & Laura and Larry & Jennifer similarly requesting that the court order them to connect to the Sewer System. On April 7, 2010, Marilyn A. Hartman entered appearances on behalf of both couples in their respective cases and filed a motion for an extension of time to file an answer in each case which the court granted. On July 13, 2010, the court set trial dates for January 20, 2011, in the action against Terry & Laura and March 17, 2011, inthe action against Larry & Jennifer. The court also entered an order referring each case for mediation.

On January 20, 2011, Terry & Laura and West Boggs appeared and West Boggs requested that the hearing be vacated as the parties had reached an agreement. On January 21, 2011, the court issued an agreed entry and judgment signed by Hartman on behalf of Terry & Laura wherein they were ordered to connect to the Sewer System, and it laid out the specific steps and applicable time frame they were to follow in doing so, including obtaining an estimate on installing a grinder pump within fifteen days of the entry of the judgment and having a fully operational and functional connection within ninety days. On March 2, 2011, the court issued an agreed entry and judgment signed by Hartman on behalf of Larry & Jennifer which was substantially similar to Terry & Laura's agreed entry.

On April 13, 2011, West Boggs filed verified motions for rule to show cause against both Terry & Laura and Larry & Jennifer in which it stated that "since the entry of the judgment, Defendants have wholly failed to comply with the terms thereof" and asked the court "to order the Defendants to appear and show cause why they should not be held in contempt for their failure to comply," and requested hearings and attorney fees on their motions. Volume I Appendix at 5, 79-80; Volume II Appendix at 142, 218-219. On April 25, 2011, Attorney Dale W. Arnett filed appearances on behalf of each couple, and on April 28, 2011, Hartman filed motions to withdraw in each action which the court granted. On May 12, 2011, each couple filed identical motions to set aside judgment pursuant to Ind. Trial Rule 60(B)(8), relying upon the First Amendment and Article 1,Sections 2 and 3 of the Indiana Constitution and specifically arguing that "[t]he Defendants are Amish, and historically the Amish have believed they are a peculiar people and should be living separate and apart from the outside world the best that they can," that "[a]s such, they have rejected public utilities including electricity from the power grid," and that "[b]oth the use of the electricity from the public grid and being on a 'public utility' sewer infringe upon the Amish way of life and sincerely held religious beliefs." Volume I Appendix at 71-72; Volume II Appendix at 209-210. They argued in their motions that "Trial Rule 60 (B) (8) should be liberally construed to allow a court to vacate a judgment within the residual power of a court of equity to do justice" because "they authorized their attorney to sign the agreed judgment, not realizing they had a meritorious defense and protection of one's constitutional rights are of the utmost importance in our present legal system."⁵ Volume I Appendix at 71; Volume II Appendix at 209.

On June 9, 2011, West Boggs filed responses to the couples' motions and requests for attorney fees. On August 1, 2011, the court held a consolidated hearing on the show cause motions and the motions to set aside in which the following colloquy occurred between Larry Wagler and Attorney Arnett:

Q. Why did you give [Hartman] permission to sign it?

A. Plain words, I was told that there's no future here, I basically had a gun to my head, or however you want to say it, that I talked to herthat day and she told me that she didn't know the constitution. . . . I'm very clear with that today, because Mr. Townsend has addressed that we didn't state this one time in the Court's record about our biblical beliefs. . . .

* * * * *

Q. When that agreement was signed, was that what you wanted to do?

A. No.

Q. Had you ever brought up your religious beliefs through your former attorney, to Ms. Hartman?

A. Yes, we talked about that.

Q. But, that avenue had not been pursued?

A. It had never been pursued. I will take responsibility for some of that. August 1, 2011 Transcript at 42-43. At the conclusion of the hearing, the court asked the defendant couples to prepare a supplemental brief addressing whether an agreed entry may be set aside pursuant to Ind. Trial Rule 60(B) which were submitted on August 26, 2011.

On September 6, 2011, the court issued an Order on Trial Rule 60 (B) Motion denying the motions to set aside and stating in part:

6. A hearing was held in this cause on August 1, 2011, wherein the defendants asserted that connecting onto the sewer line premises or any other public utility violated their religious beliefs.

7. This Court does not doubt the sincerity of the defendants' religious beliefs, nor does this Court attempt to condemn or condone such beliefs.

8. The defendants acknowledged they had read the terms of the Agreed Entry, they had legal counsel representing them at the time, they discussed the Agreed Entry with counsel, and they voluntarily signed the

...