Witt v. Jay Petroleum, Inc.
948 N.E.2d 824
Ind. Ct. App.2011Background
- Witts owned property in Portland, Indiana with multiple underground storage tanks (USTs) and faced environmental claims against Jay Petroleum and James.
- IDEM notified leaks on June 25, 2007; Witts retained Shere and later HydroTech (to be paid from any recovery) for investigation/remediation.
- From late 2007 to mid-2008, dispute over discovery and testing procedures; Jay sought access and proposed a plan, while Witts resisted disclosure of testing specifics.
- On June 27, 2008 the trial court issued a temporary restraining order (TRO) enjoining UST removal and testing to preserve evidence; a Preliminary Injunction followed on July 14, 2008.
- Contempt proceedings were pursued (December 2009 contempt finding; March 2010 fee order); this appeal challenges both the TRO and the contempt award.
- Indiana appellate court reverses, holding the TRO improvidently granted and the contempt order improper and punitive; thus, the fee award is reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the TRO was properly issued and reviewable on appeal. | Witts/Shere contend TRO improper and reviewable as a preliminary injunction. | Appellees contend TRO was a temporary restraining order, not reviewable on appeal. | TRO improvidently granted; form notwithstanding, appellate reversal not required on TRO alone. |
| Whether the contempt finding was proper given the TRO’s nature and timing. | Contempt not willful; safety and post-TRO backfilling showed compliance to preserve safety. | Contempt supported by willful noncompliance with TRO terms. | Contempt reversed; backfilling/testing not willful violation; contempt improper and sanctions punitive. |
Key Cases Cited
- NIPSCO v. LaPorte, 791 N.E.2d 271 (Ind. Ct. App. 2003) (temporary restraining orders and reviewability)
- U.S. Land Servs., Inc. v. U.S. Surveyor, Inc., 826 N.E.2d 49 (Ind. Ct. App. 2005) (preserve status quo; discovery/priority)
- AJ & K Operating Co. v. Smith, 140 S.W.3d 475 (Ark. 2004) (emergency discovery context; remediation cases cited)
- Harlan Bakeries, Inc. v. Muncy, 835 N.E.2d 1018 (Ind. Ct. App. 2005) ( TROs in boundary disputes; preservation of rights)
- Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65 (Ind. 2006) (discovery/appellate limits; contempt contexts)
- GKN Co. v. Magness, 744 N.E.2d 397 (Ind. 2001) (paper-record review; de novo standard notable in contempt)
- City of Gary v. Major, 822 N.E.2d 165 (Ind. 2005) (inherent power; contempt and dignity of court)
- Equicor Devel., Inc. v. Westfield-Washington Township Plan Comm'n, 758 N.E.2d 34 (Ind. 2001) (de novo review in paper-record contexts)
- Pigg v. State, 929 N.E.2d 799 (Ind. Ct. App. 2010) (appellate review of contempts; de novo standard)