John Witt, HydroTech Corp., and attorney Mark Shere were held in contempt of court for violating the terms of a temporary restraining order. We granted transfer and affirm the trial court.
We think the terms clearly indicate that the trial court was ordering the work on the property to cease until a hearing could be held. Witt and Shere assert that a “catch-all” phrase could have been included in the TRO to ensure that there was a complete work stoppage. While this may have improved the clarity of the order, we find that its omission did not render the TRO ambiguous. The court’s order explicitly enjoined and restrained Witt, Shere, and Hydrotech from “soil excavation, or other environmental investigation and remediation activities.” Order Granting Def. Jay Petroleum’s V. Mot. for TRO, Appellants Witt’s and Shere’s App’x at 50–51. We conclude that this was sufficiently clear and certain to unambiguously direct the cessation of all further activities by Witt, Shere, and Hydrotech at the site. This is not diminished by the contrary subjective beliefs of Shere and HydroTech that the TRO did not prohibit collecting soil samples and backfilling the newly opened pits. Collecting further soil samples was unquestionably contrary to the trial court’s order. And if backfilling was believed to be the only possible way to adequately provide for public safety, or to be possible without compromising the integrity of further soil testing activities, permission could have been, but was not, sought from the trial court. Instead, Witt and Shere unilaterally authorized HydroTech to collect the samples and backfill the holes. Appellants Witt’s and Shere’s App’x at 374. The trial court did not abuse its discretion by holding them in contempt of court for doing so.
Finally, Witt and Shere contend that imposing joint and several liability was inappropriate because it “imputed ‘willfulness’ to each of the parties despite their different roles.” Appellants Witt’s and Shere’s Br. at 57. We disagree for two reasons. First, the trial court had already found willful disobedience to its order in finding contempt. The willfulness was not “imputed” but actual, as explained above. Second, the nature of the relationship between Witt and Shere, that of client and attorney, and the mutual decision to instruct HydroTech to proceed rendered their actions practically indistinguishable. They were, in effect, joint tortfeasors. See Bottoms v. B & M Coal Corp., 405 N.E.2d 82, 90 (Ind. Ct. App. 1980) (upholding joint and several contempt damages against in-dividuals that participated in an organized violation of a court order), reh’g denied, trans. not sought; see also Vt. Women’s Health Ctr. v. Operation Rescue, 617 A.2d 411, 416 (Vt. 1992) (citing NLRB v. Laborers’ Int’l Union of N. Am., 882 F.2d 949, 955 (5th Cir. 1989)) (“Generally, those who act in concert to violate a court order are jointly and severally liable for resulting damages.”). The trial court did not abuse its discretion by holding Witt and Shere jointly and severally liable.
HydroTech separately contends that its actions were not willfully disobedient, and thus the trial court abused its discretion by holding it in contempt. HydroTech asserts that, because it relied first on Shere’s explanation of the terms of the TRO via phone and then on Shere’s interpretation, as counsel, of the TRO after the paper copy was served, its actions in taking the soil samples and back-filling the holes were not willful disobedience. We disagree. It is undisputed that HydroTech was made aware of the fact that the trial court had entered an order enjoining work on the site before the additional samples were taken and backfilling commenced. Tr. at 555, 557; see also id. at 566 (“Q: Did Mr. Shere explain to you what the Court’s Order provided? A: Yes he did.”). At this point, HydroTech’s project manager made his own decision regarding what work he could continue on the site despite the trial court’s order, id. at 555 (“I didn’t interpret [the TRO] as a stop to backfilling to secure the site.”), and then took that action. After being served with a paper copy of the TRO, Hy-droTech continued to backfill despite clear concern that this action was contrary to the terms of the TRO. Id. at 613 (“I asked [the sheriff's deputy] if he interpreted the Order as a restriction to backfilling.”). We recognize that HydroTech, at least with respect to backfilling, was concerned with the structural integrity of the property and the safety of the public, but such concerns should have been raised with the trial court. A party acts at their peril in applying their subjective interpretation to the order of the court. See Major, 822 N.E.2d at 169–70 (quoting Carson, 509 N.E.2d at 243) (“A party must follow an erroneous order.”). The trial court did not abuse its discretion in holding HydroTech in contempt.
Shepard, C.J., and David, J., concur.
Rucker, J., dissents with separate opinion in which Sullivan, J., concurs.
Rucker, J., dissenting.
In the end I agree with the Court of Appeals that plaintiffs’ conduct did not constitute a willful violation of the terms of the temporary restraining order. I therefore respectfully dissent and would reverse the judgment of the trial court.
Sullivan, J., concurs.