Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
May 23 2014, 10:46 am
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
VINCENT M. CAMPITI JEFFREY L. SANFORD
Nemeth, Feeney, Masters & Campiti, P.C. Deputy City Attorney
South Bend, Indiana South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
AGAV PROPERTIES, AVROHEM TKATCH, )
and ELISHEVA TKATCH )
)
Apellants-Plaintiffs, )
)
vs. ) No. 71A04-1308-PL-396
)
THE CITY OF SOUTH BEND, and )
THE SOUTH BEND FIRE DEPARTMENT )
)
Appellees-Defendants. )
APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
The Honorable Michael G. Gotsch
Cause No. 71C01-1204-PL-81
May 23, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
AGAV Properties, Inc., d/b/a AGAV Properties (“AGAV”), Avrohem Tkatch
(“Avrohem”),1 and Elisheva Tkatch (“Elisheva”) (collectively, “the Plaintiffs”) appeal
the St. Joseph Circuit Court’s grant of a motion to dismiss and motion for summary
judgment filed by City of South Bend and the South Bend Fire Department (collectively
“the City”). On appeal, the Plaintiffs present three issues, which we restate as: (1)
whether genuine issues of material fact existed that would preclude summary judgment;
(2) whether the Plaintiffs were denied due process because the City acted without giving
Plaintiffs proper notice; and (3) whether the trial court erred in failing to address
Avrohem’s individual claim that the City violated his rights under the Indiana
Constitution.
We affirm.
Facts and Procedural History
At the time relevant to this appeal, AGAV owned an apartment complex on Colfax
Street in South Bend, Indiana (the “Colfax Apartments”). According to the Plaintiffs’
complaint, both Avrohem and Elisheva are the owners of AGAV.2 On May 27, 2011,
Captain Johnny Fleming (“Captain Fleming”) was working for the South Bend Fire
Department in the Protection/Inspection Bureau when he inspected the Colfax
Apartments. During his inspection, Captain Fleming noticed and recorded several
violations of the building and fire codes, including non-working smoke detectors, missing
1
The Plaintiffs’ trial court pleadings indicate that Mr. Tkatch’s first name is spelled “Avrohom,” but on
appeal, the Plaintiff’s brief spells Mr. Tkatch’s name “Avrohem.” For purposes of consistency, we use
the spelling “Avrohem.”
2
The designated evidence indicates only that Avrohem is a principal of AGAV, without explaining
Elisheva’s connection to AGAV.
2
smoke detectors, lack of emergency lighting, lack of exit signs, and electrical hazards.
On June 6, 2011, AGAV was given notice of the violations Captain Fleming had found
and told that a hearing officer had determined that the property needed to be “vacated and
sealed.” Appellant’s App. p. 16. The notices included a scheduled reinspection date of
June 17, 2011. Id. at 24. Captain Fleming personally met with Avrohem on June 6 and
informed of the inspection and the violations found. Although qualified to generally
inspect the premises for fire hazards,3 there is no indication that Captain Fleming is or
was at the time an electrical inspector.
The Plaintiffs claim that Avrohem informed Captain Fleming at that time that he
would be gone for the “following several days for Jewish holiday.”4 Appellant’s Br. p. 2.
Two days later, on June 8, and before the scheduled reinspection date of June 17, Captain
Fleming and Rick Spitaels (“Inspector Spitaels”), an electrical inspector for the City
returned to the Colfax Apartments to conduct another inspection. Inspector Spitaels
identified several serious safety violations, including electric meter sockets that had
exposed, live electrical wires, electrical wires in disrepair, and rusted electrical service
equipment. Inspector Spitaels determined that these conditions presented a fire hazard
and a safety hazard. Inspector Spitaels informed Captain Fleming of these violations, and
Captain Fleming decided to disconnect the electrical service to the apartment buildings as
3
Captain Fleming averred in his affidavit that he had been “fully educated and trained in the area of
building inspection and city code violation, including fire protection and fire hazards.” Appellant’s App.
p. 15.
4
The Plaintiffs filed no affidavits in opposition to the City’s motion for summary judgment, and in
support of this statement refers only to their Notice of Tort Claim. However, a non-moving party may not
then rest on the allegations of its pleadings to demonstrate the existence of a genuine issue of fact.
DeLage Landen Fin. Servs., Inc. v. Cmty. Mental Health Ctr., Inc., 965 N.E.2d 693, 699 (Ind. Ct. App.
2012), trans. denied.
3
a safety precaution. Captain Fleming also informed the residents of the apartments that
the service was being disconnected, as was his custom.
On June 30, 2011, the Plaintiffs, represented by counsel, appeared at a hearing
regarding the June 6 vacate and seal order. The Plaintiffs requested additional time to
repair the hazards. The hearing member gave the Plaintiffs until August 1, 2011 to
complete the repairs, but affirmed the order to vacate and seal the Colfax Apartments.
Despite this extension of time, the Plaintiffs did not complete the repairs or pass further
inspections. In fact, according to the order of the St. Joseph Superior Court granting the
City’s request for a preliminary injunction, the Plaintiffs did not vacate and seal the
Colfax Apartments until the City filed for a preliminary injunction. Ultimately, all of the
tenants vacated the apartment complex.
Approximately five months later, on November 30, 2011, AGAV and Avrohem,
but not Elisheva, filed a Notice of Tort Claim with the City of South Bend, the Indiana
Political Subdivision Risk Management Commission, and the Governor of Indiana. Just
over four months after that, on April 18, 2012, AGAV, Avrohem, and Elisheva filed a
four-count complaint against the City of South Bend and the South Bend Fire Department,
alleging negligence, intentional interference with a contractual relationship, and violation
of state and federal constitutional rights. The case was removed to the U.S. District Court
for the Northern District of Indiana on May 2, 2012, but the case was ultimately
remanded back to St. Joseph Circuit Court after the Plaintiffs amended their complaint to
remove federal constitutional claims.
4
On November 8, 2012, the City filed a motion to dismiss and motion for summary
judgment along with designated evidence and affidavits in support of their motion. After
receiving extensions of time to file their response, the Plaintiffs filed a response to the
City’s motions on January 11, 2013. The Plaintiffs did not provide a separate designation
of evidence, but did include in their response two exhibits: a copy of their Notice of Tort
Claim, and a copy of the June 6, 2011 Order to Comply and Notice of Continuous
Enforcement Hearing. They did not, however, file any affidavits opposing the affidavit’s
designated by the City. On July 8, 2013, the trial court issued an order granting the
City’s motion to dismiss vis-à-vis Elisheva because the Notice of Tort Claim did not list
Elisheva as a claimaint, but denied the motion to dismiss with regard to Avrohem and
AGAV. The trial court’s order also granted summary judgment in favor of the City,
concluding that the City and its Fire Department were immune from suit under the
Indiana Tort Claims Act. The Plaintiffs now appeal.
Summary Judgment Standard of Review
On appeal, the Plaintiffs claim that the trial court erred in granting summary
judgment in favor of the City. Our standard of review of summary judgment appeals is
well established: when reviewing a grant of summary judgment, our standard of review is
the same as that of the trial court. Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904
N.E.2d 1267, 1269 (Ind. 2009). Considering only those facts that the parties designated
to the trial court, we must determine whether there is a “genuine issue as to any material
fact” and whether “the moving party is entitled to a judgment as a matter of law.” Id. at
1269-70 (citing Ind. Trial Rule 56(C)). In answering these questions, the reviewing court
5
construes all factual inferences in the non-moving party’s favor and resolves all doubts as
to the existence of a material issue against the moving party. Id. at 1270.
The moving party bears the burden of making a prima facie showing that there are
no genuine issues of material fact and that the movant is entitled to judgment as a matter
of law; and once the movant satisfies the burden, the burden then shifts to the non-
moving party to designate and produce evidence of facts showing the existence of a
genuine issue of material fact. Id. Although we are limited to reviewing only the
evidence designated before the trial court, we are not constrained to the claims and
arguments presented at trial nor the rationale of the trial court ruling. Manley v. Sherer,
992 N.E.2d 670, 673 (Ind. 2013). Instead, we may affirm a grant of summary judgment
on any theory supported by the designated evidence. Id. The party appealing a summary
judgment decision has the burden of persuading this court that the grant or denial of
summary judgment was erroneous. Knoebel v. Clark County Superior Court No. 1, 901
N.E.2d 529, 531-32 (Ind. Ct. App. 2009).5
5
We also note that the appellant bears the burden of presenting a complete record with respect to the
issues raised on appeal. Finke v. N. Ind. Pub. Serv. Co., 862 N.E.2d 266, 272 (Ind. Ct. App. 2006).
Where the appellant fails to present a complete record, we have no basis to reevaluate the trial court’s
conclusion. Id. Simply put, we cannot review a claim that a trial court erred in granting a motion for
summary judgment when the appellant does not include in the record all the evidence designated to the
trial court and before it when it made its decision. Id. at 272-73.
In the materials presented to us in the present appeal, it is not clear whether all of the materials
presented to the trial court are included in the record before us. In their appendix, the Plaintiffs did not
include the City’s motion to dismiss and for summary judgment, nor did they include the City’s
designation of evidence. Although the Plaintiffs did present two affidavits that were presumably relied
upon by the City, there is no separate designation of evidence or memorandum in support of summary
judgment by the City which would support this presumption. Thus, we would be within our discretion to
conclude that the Plaintiffs, as the appealing parties, failed to present us with a record sufficient to
conclude that the trial court erred in granting summary judgment to the City. See Finke, 862 N.E.2d at
273 (affirming trial court’s grant of summary judgment when appellant failed to include in materials
presented to the court on appeal all the evidence designated to the trial court). Still, we prefer to decide
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I. Genuine Issues of Material Fact Regarding Safety Hazards
The Plaintiffs first claim that the trial court erred in concluding that there was no
genuine issue of material fact with regard to whether there was an immediate safety and
fire hazard at the Colfax Apartments. They claim that nowhere in the affidavits provided
by the City did the affiants say that such an immediate safety and fire hazard existed.
However, the materials submitted by the City noted the safety and fire hazards, which
included exposed live wires, and stated that the electrical service was therefore
disconnected. As the Plaintiffs presented no evidence to contradict this, we cannot say
that the trial court erred in concluding that there was no genuine issue of material fact
with regard to the immediacy of the fire and safety hazard presented by live, exposed
electrical wires at the Colfax Apartments.
The Plaintiffs also claim that the hazards that were found during the June 8
inspection were the same ones that existed during the initial May 27 inspection, yet the
first inspection did not indicate any immediate emergency; instead, they claim the City
gave the Plaintiffs until June 17 to address the issues. It is true that the hazards found on
June 8 appear to be mostly duplicative of the ones found on May 27. However, based on
the initial inspections, the City ordered AGAV on June 6 to “vacate and seal” the Colfax
Apartments. As Captain Fleming stated in his affidavit, “Vacated and sealed means that
each violating building had to have all people residing in the building removed and then
the building had to be secured so that no other person could enter the building.”
Appellant’s App. p. 16. The violations notices given to the Plaintiffs by the City ordered
cases on their merits, if possible. Omni Ins. Group v. Poage, 966 N.E.2d 750, 753 (Ind. Ct. App. 2012).
We therefore address the Plaintiffs’ claims based upon the record before us.
7
the hazards to be corrected “immediately,” with a scheduled inspection date of June 17.
More importantly, the Plaintiffs appeared at a June 30 hearing and requested additional
time to remedy the hazards. The hearing officer gave the Plaintiffs until August 1 to
complete repairs, and yet the Plaintiffs still did not repair the hazards or pass an
inspection. In fact, according to the order of the St. Joseph Superior court granting the
City’s request for a preliminary injunction, the Plaintiffs did not vacate and seal the
Colfax Apartments until the City filed for a preliminary injunction.
Simply put, we fail to see how the Plaintiffs were harmed by the fact that many of
the hazards found in the two inspections were the same. The same is true with regard to
the reinspection date; we fail to see how the Plaintiffs were harmed by the fact that the
City reinspected the Colfax Apartments before scheduled date because the repairs were
not completed even by an extended repair date. And to the extent that the Plaintiffs claim
that the City’s act of disconnecting the power forced their tenants from the property, they
overlook the fact that the initial June 6 order required them to vacate and seal the
property; yet again, the Plaintiffs failed to do so until much later.
II. Due Process Claims
The Plaintiffs also claim that the City improperly denied them due process by
disconnecting the electrical service from the Colfax Apartments without proper notice.
The Plaintiffs argue that, pursuant to South Bend City Electrical Code, the building
owner must be given seventy-two hours notice before electrical services is disconnected,
and if an emergency situation exists requiring immediate disconnection, the inspector
must apply to the City Building Commissioner for such authority.
8
The Plaintiffs cite to no authority for their claim that their due process rights were
denied, nor do they even set forth any applicable due process case law. Instead, they
summarily claim that the City’s failure to strictly abide by the notice provisions denied
them due process of law. Accordingly, we consider any due process argument to be
waived. See Jeffrey v. Methodist Hospitals, 956 N.E.2d 151, 159 (Ind. Ct. App. 2011)
(citing Appellate Rule 46(A)(8)(a)) (observing that failure to support a position with any
citation to authority or cogent argument results in waiver of the issue for purposes of
appeal).
Waiver notwithstanding, the Plaintiffs still would not prevail. At best, the
Plaintiffs established that the City failed to strictly follow the procedures set forth in
Section 6-21 of the South Bend Electrical Code, which provides in relevant part:
Electrical Inspector
***
(b) Authority to discontinue use. Upon finding that any electrical
equipment is dangerous to persons or property because it is defective or
defectively installed, the Electrical Inspector has the authority to order, in
writing, the person responsible for the electrical equipment to make
changes or repairs necessary to place the equipment in safe condition in
compliance with this chapter. If the person responsible does not comply
with the order within seventy-two (72) hours from the service of the order,
the Electrical Inspector shall have the authority to disconnect or order the
discontinuance of electrical service to such electrical equipment.
(c) Authority to disconnect electrical equipment. Upon the approval of the
Building Commissioner, the Electrical Inspector has the authority to
disconnect or cause the disconnection of any electrical equipment
immediately upon his determination that such immediate disconnection is
necessary for safety to persons or property.
The Plaintiffs claim that Captain Fleming failed to give them seventy-two hours
notice or obtain the approval of the Building Commissioner before disconnecting the
9
electrical service to the Colfax Apartments. In this regard, the Plaintiffs appear to be
correct; at the very least, the City did not establish that Captain Fleming obtained the
approval of the Building Commissioner prior to disconnecting the electrical service to the
Colfax Apartments. The Plaintiffs do not explain, however, how this apparent failure to
abide by the Electrical Code prejudiced them or deprived them of due process. Indeed,
we note that the Plaintiffs, represented by counsel, appeared before a hearing officer on
June 30, 2011, which affirmed the order to vacate and seal and extended the deadline for
repairs to August 1, 2011. And by the August 1 deadline, the Plaintiffs still had not
repaired or corrected the hazards, nor did they vacate and seal the Colfax Apartments
until the City filed a cause of action for a preliminary injunction and obtained the
preliminary injunction it sought. Under these facts and circumstances, we cannot say that
the Plaintiffs have demonstrated any genuine issue of material fact with regard to whether
they were denied due process.
III. Individual Constitutional Claims
The Plaintiffs also briefly claim that the trial court failed to address Avrohem’s
claim that his individual religious rights under the Indiana Constitution were violated. As
noted above, Avrohem claims that he told Captain Fleming that he would be on a
religious holiday from June 6, 2011 and for several days thereafter, but that Captain
Fleming returned with Inspector Spitaels on June 8 knowing that Avrohem would be
gone on a religious holiday. On appeal, the Plaintiffs claim that the trial court only
addressed this issue with regard to AGAV Properties’ claim and ignored Avrohem’s
personal claims. We disagree.
10
First, the Plaintiffs acknowledge that the trial court did in fact conclude that the
City was immune from the Plaintiffs’ claims. Because the trial court concluded that the
City was immune from the Plaintiffs’ claims, it was unnecessary for the trial court to
specifically address Avrohem’s individual claims. And the Plaintiffs present no
argument that the trial court erred in its immunity determination. Further, the Plaintiffs
cite no authority and present no cogent argument in support their claim that Avrohem’s
religious rights were violated by the City’s action of disconnecting power while Avrohem
was on a religious holiday. See Jeffrey, 956 N.E.2d at 159 (citing App. R. 46(A)(8)(a)).
Accordingly, the Plaintiffs have not persuaded us that the trial court erred in granting
summary judgment in favor of the City with regard to Avrohem’s individual claims
regarding the alleged violation of his constitutional rights.
Conclusion
For all of the reasons stated above, the Plaintiffs have not met their burden as
appellees of persuading us that the trial court erred in granting summary judgment in
favor of the City.
Affirmed.
FRIEDLANDER, J., and PYLE, J., concur.
11