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FOR PUBLICATION
ATTORNEY FOR APPELLANTS: JOHN D. COX Lynch, Cox, Gilman & Mahan, PSC Louisville, Kentucky ATTORNEYS FOR APPELLEES: Spencer County Plan Commission JOHN G. WETHERILL Rockport, Indiana Spencer County Board of Commissioners FRANCIS H. LUEKEN, JR. Ferdinand, Indiana Pro Hac Vice: SCOTT D. BERGTHOLD Chattanooga, Tennessee

FILED
Aug 21 2009, 9:22 am
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
PLAZA GROUP PROPERTIES, LLC, ROBERT W. ALLEN and FUEL IN DALE, L.L.C., ) ) ) Appellants, ) ) vs. ) ) SPENCER COUNTY PLAN COMMISSION and ) SPENCER COUNTY BOARD OF COMMISSIONERS, ) ) Appellees. )

No. 74A04-0901-CV-51

APPEAL FROM THE SPENCER CIRCUIT COURT The Honorable Wayne A. Roell, Judge Cause No. 74C01-0512-MI-482

August 21, 2009 OPINION - FOR PUBLICATION BAILEY, Judge

Case Summary The Spencer County Plan Commission and the Spencer County Board of Commissioners (collectively "Spencer County") filed an information to show cause, alleging that Plaza Group Properties, LLC, Robert W. Allen, and Fuel in Dale, L.L.C. (collectively "Defendants") were violating an order issued by the Spencer Circuit Court. The trial court found the Defendants to be in contempt, ordered them to pay $340,000 in fines, in addition to attorney and expert-witness fees, and prohibited the operation of the Defendants business for at least one year and until they paid in full the fines and fees ordered therein. The Defendants appeal. We affirm in part, reverse in part, and remand. Issues The Defendants raise six issues, which we consolidate and reorder as follows: I. Whether the Defendants are precluded in this appeal from arguing that the applicable ordinances were unconstitutional. Whether Robert W. Allen and Plaza Group Properties, LLC are judicially estopped from denying their operation of the business. Whether the trial court abused its discretion in finding the Defendants in contempt; Whether the fine is punitive; and Whether the one-year closure of the Defendants bookstore violates their First Amendment rights. 2

II.

III.

IV. V.

Spencer County presents the sole issue of whether it should receive attorney fees, asserting that the appeal is frivolous. Facts and Procedural History The Defendants purchased a truck stop in Spencer County and operated a motel, a convenience store, and another building ("main building"). In 2005, Spencer County sought injunctive relief, alleging that the Defendants were violating county ordinances in their operation of a "sexually oriented business." Appellants Appendix at 26-27. The parties soon entered an "Agreed Preliminary Injunction Order" ("Agreed Order"), which was approved by the trial court. Appellees Appendix at 3. The Agreed Order provided that the Defendants were "preliminarily enjoined from operating a sexually oriented business, as defined in Spencer County Ordinance No. 2005-11, on any of the premises described in the Amended Complaint." Id. at 4. In answering an amended complaint filed by Spencer County, the Defendants admitted that they advertised "lap dances," advertised "preview booths," and produced a written advertisement that referenced "TABLE DANCES," "LAP DANCES," AND "VIP BOOTHS." Appellees Appendix at 8, Appellants App. at 122. In addition, the Defendants asserted that Spencer Countys ordinances were unconstitutional and violated: (1) the First Amendment; (2) the First, Fifth, and Fourteenth Amendments because they were vague and overbroad; and (3) the Defendants Equal Protection rights under the Fifth and Fourteenth Amendments. The Defendants stated that they "were operating their business in good faith." Appellees App. at 11. They counterclaimed, pursuant to 42 U.S.C.

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