*1 CARSON, Hobbs, Bert Thomas William
Paddack, Hardin, Jr., and John D. As
Members of the Board of Trustees of County Hendricks County Hospital Hendricks
tion, Inc., Defendants-Appellants, ROSS, Malayer,
Frank James Charles
Whitaker, Ernst, Long, Keith and John
as Members of the Board of Trustees of County Hospital,
the Putnam Plain-
tiffs-Appellees.
No. 11A01-8612-CV-324. Appeals Indiana,
Court of
First District.
June
Rehearing Aug. Denied *2 Founda- employees.
or
tion functions
ties, offices,
facili-
through use of HCH
employees.
and
September
HCH Foundation
On
approximately three acres of
purchased
County and took title
in Putnam
real estate
by
warranty
HCH Foundation's
deed.
purpose
acquiring
in
the land was
stated
building.
office
and sell a medical
construct
land,
purchasing the
HCH Founda-
Before
tion
fice
medical of-
negotiated
had
to sell the
physicians.
to four
The medi-
sold for cost
be
cal office
(1%)
interest,
percent
one
plus
calculated at
Although
buying physi-
prime.
over
HCH,
agreement
on staff at
no
clans were
to main-
require them
made that would
patients
refer
to HCH
tain contact or
mistakenly placed
An advertisement was
20, 1986,
Banner-Graphic
January
on
take
which indicated that HCH would
bids
Bainbridge. A
building project
on a
in
issued on
construction document was
March
26, 1986,
name,
project
and bore the
Webb, Jr., Hinkle Keck Webb
Russell M.
County Hospital Bainbridge
"Hendricks
Pierce, Danville,
defendants-appel-
&
Family
com-
Health Center." Construction
lants.
menced after the issuance of the
permit.
Greencastle,
Calbert,
plaintiffs-
J.D.
appellees.
25, 1986,
complaint
On June
POH filed
against
requested
defendants and
an in-
Judge.
RATLIFF,
Chief
junction
restraining
August
and
order. On
change
per-
1986 before a
of venue was
fected, plaintiffs
sought,
Judge
and
OF THE CASE
STATEMENT
Vaughn granted,
emergency injunction
an
Carson,
Defendants,
Thomas
Bert
-
temporary restraining
and
order without
Hobbs,
Paddack,
D.
William
and John
Har-
hearing
A
notice.
and held on
on the order was set for
din, Jr.,
of the Board of Trust-
as members
August
Attorneys
County Hospital
and
ees of
Hendricks
hearing,
for both sides were
at the
Foundation,
County Hospital
Hendricks
validity
restraining
order
but
Inc., appeal
preliminary injunction
argued
tempo-
was not
at that time. The
by
Clay
order entered
Circuit
rary restraining order
continued at
in
part
We reverse in
and affirm
Court.
by
attorneys
that time
by
consent of both
part.
Judge Vaughn,
order of
"until
written
special judge or
FACTS
further order of selected
judge
county
to which this cause is
plaintiffs
members of
individual
venued."
County
the Board of Trustees of Putnam
19, 1986,
August
perfected
Hospital
(PCH).
On
venue was
The defendants
Clay
that same
County
Circuit Court. On
Board of Directors
for Hendricks
(HCH)
comprise
counsel,
four of the
day, on advice of defendant's
con-
affi-
struction resumed. Plaintiffs filed an
davit for Order to Show Cause for Con-
seven members of the
of Directors
Board
County Hospital
for Hendricks
tempt.
contempt motion and re-
Plaintiffs'
(HCH Foundation).
public coun-
HCH is a
County.
ty hospital operated Hendricks
quest
preliminary injunction
was heard
by
Clay
September
Circuit Court on
incorporated HCH Foundation under
6, 1986, Judge
pursu-
1986. On November
Yelton
of Indiana and
the laws of
State
16-12.1-3-1 to
fact,
law,
ant to Indiana Code section
findings
issued
conclusions of
judgment
judge
of PCH. The
Founda-
favor
promote and
HCH. HCH
benefit
preliminary injunction against
by
pursuant
issued
fendants for violation of Ind.Code 16-12.-
de-
primarily
funded
16-12.1-8-12. HCH
to Ind.Code
§.
facilities,
1-3-2 and found
officers
defendants
tion has no independent
inj
the temporary restraining
mining
issued
the propriety of a preliminary
Judge Vaughn.
Judge Yelton also
when the
fined
sought
acts
unction.1
to
legislature
enjoined
be
($500)
defendants
five hundred dollars
are declared
each
unlawful
pay
portion
ordered them to
plaintiff
does not have to
attorney's
PCH's
fees
show
of
attributable
either irreparable injury or a balance
restraining
enforcement of the
order con-
hardship in his favor. State ex rel.
tempt citation.
Department
Natural Resources v. Ma
of
Ind.App.,
*3
(1981),
son
1312,
416 N.E.2d
HCH and
challenge
HCH Foundation
the
1316,
denied;
trans.
DeMayo v. State ex
preliminary injunction and contempt order
Department
rel.
Natural
Resources
by
interlocutory appeal.
of
(1979), 182
241,
Ind.App.
394
N.E.2d
261. If the trial court's findings of fact are
ISSUES
clearly erroneous or the conclusions con
presented
trary
law,
to
by
issues
HCH and
then the
HCH
trial
grant
court's
of
a
Foundation
preliminary injunction
are restated as follows:
will be reversed as
an abuse of discretion.
Steenhoven,
at
1. Whether the trial court abused its
665; Wells, at 684. In
present case,
issuing
discretion in
preliminary
a
injune
findings
court's
of fact and conclu
tion based on Ind.Code 16-12.1-3-2.
§
sions thereon were contrary to law and an
2. Whether the trial court's order find- abuse of discretion. Accordingly, we re
ing the
defendants in
of court
verse.
proper.
case,
present
In the
requested
PCH
preliminary
a
injunction
upon
based
DISCUSSION AND DECISION
argument that HCH Foundation was in vio
lation of Ind.Code
16-12.1-3-2 which
Issue One
reads:
grant
or denial of
prelimi
purchase, construct,
"The
may
board
nary injunction is in the sound discretion of
remodel, repair, enlarge,
acquire
or
judge.
trial
Mid-America Marketing,
any
building
lawful manner a
or build-
Inc. v. Falender Development Corp.
ings, within or outside the county, for
(1980), Ind.App.,
242
"hospital purposes"
interpretation
Our
care
health
related
facilities,
other
jurisdictions
in accord with other
which
is
have
services."
facilities
pur
indirectly interpreted hospital
medical office
if the
regard
seeking
poses with
to individuals
purposes
hospital
constructed
exempt
Anchorage
tax
status. Greater
16-
statute, then Ind.Code §
defined
as
(1976),
Borough
Charity
Area
Sisters
may not be
inapplicable
12.1-3-2
Alaska,
467; City
Long
553 P.2d
injunction.
preliminary
support
used
Monmouth Medical Center
Branch v.
to occur
for the
In order
756;
N.J.Super.
351 A.2d
or
purposes,
hospital
Hospital
Memorial
L.
Julia
Ass'n
Butterfield
intend
or
provide
ego must
alter
an
tion as
Philipstown
v. Town
or services
facilities
treatment
provide
852;
289, 368 N.Y.S.2d
Genesee
A.D.2d
recog-
generally
public
general
Wagner
47 A.D.2d
Hospital v.
have
Plaintiffs
nized as
N.Y.S.2d 934.
In Genesee
364
the
that HCH
any evidence
failed to
held that
Appellate
New York
Court
provide treatment
would
not meet
private physicians' offices would
*4
recognized
generally
and services
facilities
pur
exclusively
hospital
for
the "used
undisputed evi-
The
services.
hospital
as
dence
exempt status.
requirement for tax
poses"
found, that
shows,
46, 364 N.Y.S.2d at
Hospital,
at
Genesee
the
resell
to
intended
Foundation
HCH
medical office
Although
would come to
944.
some benefit
physicians
four
building to
of much needed
hospital
form
completed.
was
as
as soon
hospital patient refer
potential
doctors and
actions
Foundation's
106. HCH
at
Record
rals,
private
offices
the court held that
investment
financial
toward
geared
were
hospi
were not for
performed services that
hospital services.
of
providing
office
and not
44, 364
at
purposes.
tal
Id. at
N.Y.S.2d
not
building clearly was
The medical
Rather, much of the services were
943.
purposes as
hospital
for
being constructed
making
purely private profit
activities. Id.
by statute.
defined
at
the offices were denied tax
364 N.Y.S.2d at
ac
Foundation's
HCH
argues that
PCH
exempt status.
hospital pur
for
must be
inherently
tions
Id.
estab
HCH
poses, because
Branch,
Jersey
the New
City Long
In
of
of HCH.
benefit
exclusive
for the
lished
that, although
Supreme Court also found
Founda
that HCH
However, mere fact
might
physicians' offices
benefit
the
hospital,
benefit
ultimately would
actions
tion's
exclusively
they
not used
were
indirectly
possibly
financially and
Branch,
Long
hospital purposes. City of
does not
patients
hospital
through referred
regard
A.2d
762. With
to
at
351
at
actions were
Foundation's
mean that
stated: "Uti
hospital purposes, the court
"hospi
defining
In
hospital purposes.
buildings
private
for the
of these
lization
mention
makes no
statute
purposes"
tal
dentistry
purely
practice of medicine and
is
purposes"
Rather, "hospital
of "benefit".
is defined
ultimate
making activity
simply private profit
and
and is in direct
respect to
exclusively with
competition
pri
with the
of
hospital-provision
goal of
buildings
vately owned commercial rental
generally
or services
facilities
treatment
goes
beyond
far
the traditional func
leg
If the
services.
hospital
recognized as
hospital."
The
purposes
of a
Id.
tions
Founda
include HCH
meant
to
islature
exempt
deny tax
status
court went on to
hospi
of
the definition
within
actions
tion's
tal
private
use of the
because
it
defined
have
they would
purposes
reasonably
not
professional offices was
that will
standpoint of activities
from
necessary
hospital purposes.
Id.
hospital.
financially benefit
City
pur
As
Genesee
hospital
define
did not
legislature
of
Founda
Branch,
build-
Long
Since
the sale
this manner.
pose in
private
as
ing
physicians to be used
to
on financial
by return
motivated
tion was
pur-
hospital
does not constitute
hospital offices
of
provision
and not
investment
selling
private
pose.
purpose
inappli
services,
16-12.1-3-2
Ind.Code §
profitable return
physicians was to make a
of HCH
present activities
cable to
financial
on a
investment.
Foundation.2
Furthermore,
generally empowered
dations are
to make finan-
under
16-12.1-3-2
required only
hospitals
argu-
or
consent is
when
ventures. The
cial
investments
in real estate
note, also,
ably
egos
when their alter
act. We
applicability
requirement of Ind.
of the consent
party
that neither
and we offer no
has raised
only issue raised.
Code
16-12.1-3-2 was the
opinion
hospitals
as whether
and their foun-
not
provision
temporary restraining
to be used for the
that the
order would
Rather,
effect,
remain
"until
further
order of
carry
physicians's
special judge
judge
be used to
out several
selected
of the coun-
private practices
profit
ty
steady
to insure a
to which this cause is venued." Accord-
ingly,
to HCH Foundation and
the temporary restraining
HCH. Fur
order did
thermore, provision
of services at
not
after ten
days
a doc
dissolve
or on the
generally recognized
tor's office is not
provision
day
judge
jurisdiction.
the new
as
obtained
hospital
Therefore,
services.
the order was in effect when
HCH and HCH Foundation's
defendants resumed
actions are
construction.
16-12.1-3-2.,
covered
Ind.Code §
argue they
Defendants next
argues
PCH
that the issue of the
cannot be held in
because
applicability of the definition
temporary restraining
purposes"
appeal.
was waived on
An issue
and continuance
Al
were erroneous.
can
party
be waived if a
fails to raise the
though a defendant cannot
held in
be
con
issue at
assignment
trial or in the
of er
order,
tempt of
a void
a defendant
be
rors. Larabee v. Booth
Ind.App.,
held in
of an erroneous order.
487, 491;
463 N.E.2d
Indiana Insurance
Jackson v. Farmers State Bank
Ind.App.,
Sentry
Co. v.
Insurance Co.
Ind.App.,
denied;
481 N.E.2d
trans.
1387-88.
In the
4
(1979).
Contempt
17 Am.Jur.2d
§§
present case, the issue
ap
of the statute's
An
order is void if made
a court that
plicability
enjoined
to the
conduct was not
jurisdiction,
lacks
and is erroneous if unen
waived. HCH and HCH Foundation raised
appeal
upon non-juris
forceable on
based
project's purpose
issue of the
at trial
irregularities.
dictional
17 Am.Jur.2d Con
and raised the issue of the applicability of
*5
(1979).
tempt
Accordingly, a defend
§
Ind.Code 16-12.1-3-2 based on the defini
challenge
contempt finding
ant
not
tion of hospital purposes.
(i),
Record at
upon
prior
non-jurisdic
based
tional
order's
204 and 206.
PCH's waiver
irregularities.
Jackson,
at 402. A
argument
merit,
is without
according
party must follow an erroneous order. The
ly,
grant
we reverse the
of the preliminary
only remedy from an erroneous order is
injunction.
contempt.
appeal and disobedience thereto is
Founda
.
Since HCH
Id
tion do not
Issue Two
challenge Judge Vaughn's juris
order, they
prop
diction to render
erly
were
HCH and HCH Foundation next
contempt
in
of court.
held
indirect
argue that
finding
trial court's
that
Therefore, we find no
of discretion
abuse
defendants
court was
discretion.
in
were
indirect contempt of
finding
court's
of con
and affirm the trial
tempt,
contrary
to law and an abuse of
ordering of fines
costs.
punishing
The
or refusal
punish
of court
is in the
preliminary
The trial court's
court,
sound discretion of the trial
and we
injunction
improper
was
because
will
only
reverse
for an abuse of discretion.
apply
16-12.1-3-2 does not
to the con-
v.
App.,
Clark Clark
Foundation. There-
duct HCH and HCH
23, 37.
In
punish
order to
person
finding
fore we reverse. The trial court's
indirect
of court there must be an
contempt by
of indirect
HCH and HCH
order or decree commanding the accused to
proper. Therefore we af-
Foundation was
something
do
or to refrain
doing
from
firm.
something.
Furthermore,
Id.
the accused
part.
part
affirmed in
Reversed
must know of the order and must violate it
against appellee.
Costs assessed
while
force.
Id.
argue
they
Defendants
prop-
that
cannot
ON PETITION FOR REHEARING
erly be held in contempt because the Au-
gust
temporary
6th
restraining
petition
rehearing
Appellees
order either
On
lapsed August
on
Ross,
16th under
Malayer,
Trial Rule 65
Whit
Frank
James
Charles
August
19th
perfected.
when venue was
aker,
Long, as mem
Keith Ernst and John
argument
The defendants'
The
is unfounded.
of the Put
bers of the board of trustees
August
6th
order was continued
pub
County Hospital challenge our
nam
Judge Vaughn
August
hearing.
at the
12th
opinion
lished
v. Ross
Carson
Defendant had
notice of and was
Appellees raise
Ind.App.,
purposes" this issue became of Indiana applicability on the The decision dispositive of 16-12.1-1-2 section Code re petition for appeal. hearing is denied. NEAL, JJ., concur.
ROBERTSON