Majority upholds finding of contempt

Three Indiana justices affirmed a trial court order finding a business owner, his attorney and an environmental firm in contempt for doing work on a site with possible environmental issues after a temporary restraining order had been issued.

At issue in John Witt, HydroTech Corp, and Mark Shere v. Jay Petroleum, Inc., and Jack R. James, No. 38S02-1110-CV-608, is whether the decision by John Witt and attorney Mark Shere to backfill holes on Witt’s property – which were dug to remove underground storage tanks and test soil – violated the terms of a temporary restraining order obtained by Jay Petroleum Inc. and Jack James, the previous owners of the land.

Jay Petroleum wanted to have its own environmental consultant on location when HydroTech Corp. began removal of the UST. The parties couldn’t agree and Witt refused to allow Jay Petroleum’s environmental consultant on the property. Jay Petroleum and James obtained a temporary restraining order that said Witt and the others are enjoined and restrained from “conducting UST removal, soil excavation, or other environmental investigation and remediation activities on the Property …”

Shere interpreted the TRO to mean that HydroTech could backfill the holes for safety reasons and also conduct testing on one of the exposed pits. Jay Petroleum filed for contempt of court; the trial court found Witt, HydroTech and Shere in contempt and held them jointly and severally liable for $108,487.32 in costs and attorney fees.

Justices Brent Dickson and Steven David and Chief Justice Randall Shepard upheld the order, finding the collection of the samples clearly violated the order and that if they believed backfilling was the only way to provide for public safety, Witt should have sought permission from the trial court. The majority also upheld the decision to exclude from trial any evidence gathered after the entry of the TRO and the costs imposed.

Justices Robert Rucker and Frank Sullivan dissented, believing that the order did not prohibit any activity to ensure that the site wouldn’t pose a threat to public safety. With regards to the testing of samples, the record is unclear whether they were taken before or after the restraining order was issued and whether Witt would have used those tests in the case, wrote Rucker.