Sewer company entitled to attorney fees over frivolous appeal

April 15, 2015

Three people required to connect their properties to a not-for-profit sewer company – who later were held in contempt for not doing so – must pay appellate attorney fees to the sewer company because the individuals sought to re-litigate the judgments instead of challenge the contempt orders.

The Indiana Court of Appeals in Norman Wagler, Nathan Wagler, and Janet Wagler v. West Boggs Sewer District, Inc., 14A05-1406-PL-281, agreed with West Boggs Sewer District Inc. that the appeals filed by Norman Wagler, Nathan Wagler and Janet Wagler were frivolous. The three appealed the finding that they are in contempt for willfully disobeying a judgment that they must connect to the sewer system.

Under I.C. 8-1-2-125, the Waglers were required to connect their respective properties to West Boggs’ sewer system, which serves the West Boggs and Loogootee communities.  They challenged the requirement and a trial court ruled in favor of the sewer company, ordering them to connect to the system. The three appealed all the way to the Supreme Court of the United States, which denied certiorari in 2014.

Then, the trial court issued two contempt orders against Norman Wagler and two contempt orders against Nathan and Janet Wagler for failing to comply with the judgments. They appealed the second contempt orders, but do not challenge the findings of contempt. Rather, they claim that a 2012 amendment to I.C. 8-1-2-125 exempts them from having to connect to the sewer system.

“This is an impermissible collateral attack on the original judgments,” Judge Terry Crone wrote. “The Waglers unsuccessfully appealed the original judgments all the way to the U.S. Supreme Court. The only procedural means for asserting their retroactivity argument, which they did not raise in Wagler I, would be a motion for relief from the original judgments pursuant to Indiana Trial Rule 60(B), which they did not file.”

The COA awarded West Boggs appellate attorney fees because the Waglers’ appeal appears to be part of a strategy simply to draw this matter out with the hope that West Boggs will quit. The court remanded with instructions for calculation of the amount of fees to which West Boggs is entitled.



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