Pursuant to Ind.Appellate Rule 65(D), Nov 27 2013, 5:43 am
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.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
ROBERT W. ROCK J. DAVID ROELLGEN
Jones Wallace, LLC Kolb Roellgen & Kirchoff, LLP
Evansville, Indiana Vincennes, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARK A. VALDES and JAMES H. VALDES, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 42A01-1302-PL-88
)
VINCENNES BUILDING and SAFETY )
COMMISSION and the CITY OF VINCENNES, )
)
Appellees-Defendants. )
APPEAL FROM THE KNOX CIRCUIT COURT
The Honorable Sherry B. Gregg Gilmore, Judge
Cause No. 42C01-1112-PL-650
November 27, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Mark Valdes1 appeals the trial court’s judgment affirming an order by the City of
Vincennes Building and Safety Commission to demolish a hotel owned by him. We affirm.
Issues
The restated issues before us are:
I. whether Mark timely sought judicial review of the
demolition order;
II. whether the trial court properly denied Mark’s motion
to dismiss;
III. whether Mark was denied due process of law;
IV. whether the trial court properly affirmed the demolition
order;
V. whether the trial court properly denied Mark’s motion
to correct error; and
VI. whether the trial court properly required Mark to post a
bond of $500,000 in order to stay execution of the
demolition order during the pendency of this appeal.
Facts
On April 5, 2007, the State Department of Homeland Security, Division of Fire and
Building Safety (“DHS”), filed an action for a preliminary and permanent injunction
against Zoheir Maarouf, owner of the Executive Inn in Vincennes, for multiple alleged
violations of fire and building safety codes, following a fire at the property. The action
was filed in the Knox Superior Court. The DHS’s action sought an injunction to force the
1
James Valdes was involved during the proceedings below but died while they were ongoing; he is still
listed as a named party in this appeal.
2
closure of the Executive Inn until such time as necessary repairs to the building were made.
On April 17, 2007, the Knox Superior Court granted a preliminary injunction closing the
Executive Inn. Later, however, the Executive Inn was permitted to partially re-open while
repairs to it were made. Maarouf sold the Executive Inn to Mark and James Valdes in July
2007, and the Valdeses were substituted as defendants in the action. On September 29,
2008, DHS filed a “Proposed Plan of Correction” for the Executive Inn. Appellee’s App.
p. 6.
On August 11, 2009, the City of Vincennes (“the City”) filed a separate action in
Knox Superior Court against the Valdeses, seeking an injunction forcing them to vacate
the Executive Inn based on multiple building safety code violations alleged to have been
found during a City inspection conducted by the City’s building inspector, Chris Eisenhut.
On August 14, 2009, the City’s action was consolidated into the pre-existing DHS case.
On August 19, 2009, the Knox Superior Court entered a preliminary injunction requiring
the full closure and vacating of the Executive Inn until further order of the court, while
permitting the Valdeses, their relatives, and hired repairmen onto the premises to make
repairs. The court also noted in this order that the Valdeses had failed to submit a plan of
correction for the property, despite having been ordered in June 2008 to provide one. The
Valdeses finally submitted such a plan on February 18, 2010.
On November 3, 2010, while the action before the Knox Superior Court was still
pending, Eisenhut, acting in his official capacity, issued an “Order of Demolition,” stating
that the Executive Inn needed to be demolished because it was an “unsafe building” as
defined by Indiana law, “as it is in an impaired structural condition that makes it unsafe to
3
the public, is a fire hazard and is a hazard to public health.” Appellant’s App. p. 188. This
order required demolition of the Executive Inn within twenty days, subject to the Valdeses’
right to contest the order before the City’s Building and Safety Commission (“the
Commission”). On November 30, 2010, and December 7, 2010, the Commission
conducted several hours of hearings at which the Valdeses contested the demolition order.
On January 18, 2011, the Commission conducted public deliberations and orally
announced that it would give the Valdeses until December 1, 2011 to repair the Executive
Inn. On February 22, 2011, the Commission entered a written order expressly modifying
the demolition order, providing the Valdeses until December 1, 2011 “to make all
necessary repairs, remediation, and correction of Code violations to the Executive Inn . . .
.” Id. at 39. The order concluded that, if the Valdeses failed to prove that they had made
the needed repairs to the Executive Inn by December 1, 2011, as evidenced by a certificate
from a licensed architect, that “the Commission shall reconvene a public meeting to
consider further Orders, which may include an Order of Demolition of the Executive Inn.”
Id. at 40.
The Valdeses failed to submit the required architect’s certificate indicating that they
had repaired the Executive Inn by December 1, 2011. The Commission convened a hearing
on that date to determine the fate of the Executive Inn. Eisenhut testified regarding the
Valdeses’ failure to repair the property. In fact, the Valdeses had not applied for any
permits with respect to any repair work until October 26, 2011; this permit request was for
electrical and drywall work only, which would have fallen well short of the work needed
on the property. The Valdeses’ attorney was not allowed to cross-examine Eisenhut, but
4
James Valdes and his attorney discussed why they believed it would be inappropriate to
order immediate demolition of the Executive Inn.2 James stated that although the property
was mortgage-free, it was impossible to obtain financing for repairs of the property with
the threat of demolition hanging over it. He also stated that he had hopes that an incoming
new mayoral administration for the City, set to take office in January 2012, would be more
receptive to his concerns. He further alleged that the current mayor and a partner had a
particular interest in tearing down the Executive Inn so that an entirely new hotel could be
built on the land, and that one of the Commission members had been overheard in public
discussing this interest. James also claimed never to have received a definitive list of
repairs that needed to be made to the building in order for it not to be demolished.
At the conclusion of this hearing, the Commission voted to allow the demolition of
the Executive Inn to proceed. On December 9, 2011, the Valdeses filed a complaint for
judicial review of the Commission’s order in the Knox Circuit Court (“the trial court”).
James Valdes passed away in February 2012. On April 27, 2012, Mark Valdes filed a
“Motion to Dismiss,” asserting that the City’s demolition action should be dismissed
because it conflicted with the already existing action in Knox Superior Court that had been
brought by the DHS and later joined in by the City. The City also filed a motion to dismiss,
claiming that Mark did not timely file a challenge to the Commission’s ruling of February
22, 2011. The trial court held a hearing on these motions on October 9, 2012, and
2
Unfortunately, there are many inaudible portions noted on the transcript of this hearing.
5
subsequently denied both of them. On December 12, 2012, the trial court issued an order
affirming the Commission’s demolition order.
On December 14, 2012, having not yet received a copy of the trial court’s December
12, 2012 ruling, Mark filed a motion requesting an evidentiary hearing. On December 21,
2012, the trial court denied Mark’s motion, stating in part “that all parties agreed that the
Court would proceed with a ruling in this cause without further hearing.” App. p. 321. On
January 9, 2013, Mark filed a motion to correct error. The motion was accompanied by an
affidavit from Mark, alleging in pertinent part that Eisenhut had interfered with or refused
to issue permits for repairs to the Executive Inn and had threatened potential contractors
that they would never work in the City again if they performed work for the Valdeses. The
affidavit also restated the assertion that the previous mayor of the City had wanted the land
where the Executive Inn was located for the building of a new hotel for him and his partner,
and that one of the Commission members was aware of this fact.
On January 29, 2013, the trial court denied Mark’s motion to correct error. Mark
timely initiated an appeal from this ruling and sought a stay of enforcement of the
demolition order pending appeal. The trial court conducted a hearing on this request, and
on May 29, 2013, it entered an order staying enforcement of the demolition order pending
appeal, but also requiring Mark to post an appeal bond of $500,000. Mark filed a motion
with this court challenging the appeal bond requirement, requesting that it be eliminated
altogether or modified to a “very modest amount . . . .” On July 29, 2013, the motions
panel of this court denied Mark’s motion. The case now comes before us fully briefed.
Analysis
6
I. Timeliness of Request for Judicial Review
Before addressing Mark’s arguments, we first address the City’s claim that the
Valdeses did not timely request judicial review of the Commission’s ruling(s) and that the
request for judicial review filed on December 9, 2011, was far too late. Indiana’s Municipal
Unsafe Building Act (“the Act”)3 is codified at Indiana Code Chapter 36-7-9. Indiana Code
Section 36-7-9-8 provides in part:
(a) An action taken under section 7(d) or 7(e) of this chapter is
subject to review by the circuit or superior court of the county
in which the unsafe premises are located, on request of:
(1) any person who has a substantial property interest in
the unsafe premises; or
(2) any person to whom that order was issued.
(b) A person requesting judicial review under this section must
file a verified complaint including the findings of fact and the
action taken by the hearing authority. The complaint must be
filed within ten (10) days after the date when the action was
taken.
Indiana Code Section 36-7-9-7 in turn provides that a “hearing authority” must hold a
hearing with respect to a demolition order issued by a municipal “enforcement authority”;
in the present case, the Commission was the “hearing authority” and the City’s building
inspection department, through Eisenhut, was the “enforcement authority.” Subsection (d)
of Section 36-7-9-7 specifically provides:
At the conclusion of any hearing at which a continuance is not
granted, the hearing authority may make findings and take
action to:
3
This is not an “official” name of the Act.
7
(1) affirm the order;
(2) rescind the order; or
(3) modify the order, but unless the person to whom the order
was issued, or counsel for that person, is present at the hearing,
the hearing authority may modify the order in only a manner
that makes its terms less stringent.
The City contends that, under Section 36-7-9-8(b), the Valdeses were required to
file a request for judicial review within ten days of either the Commission’s oral ruling of
January 18, 2011, or its written ruling of February 22, 2011. We disagree. The
Commission’s rulings of January 18, 2011 and February 22, 2011, modified Eisenhut’s
earlier demolition order by providing the Valdeses with until December 1, 2011 to make
necessary repairs to the Executive Inn, rather than immediately proceeding to demolition.
The Commission did not make a final decision to immediately proceed with the Executive
Inn’s demolition until December 1, 2011. It is that final demolition decision that Mark
now wishes to challenge, and his request for judicial review filed eight days thereafter was
timely. We would agree, however, that Mark is now precluded from indirectly challenging
any part of the February 22, 2011 order, such as the length of time given to remediate the
property, or the fact that the order did not completely rescind the demolition order, or that
the order allegedly did not provide adequate notice of what precisely the Valdeses needed
to do repair-wise in order to avoid demolition. See Quaker Properties, Inc. v. Department
of Unsafe Bldgs. of City of Greendale, Ind., 842 N.E.2d 865, 868 (Ind. Ct. App. 2006)
(holding that party who does not timely seek review of unsafe building order waives right
to judicial review of the order), trans. denied.
8
II. Motion to Dismiss
We next address whether the trial court properly denied Mark’s motion to dismiss.
On this point, Mark first invokes Indiana Trial Rule 12(B)(8), which “permits dismissal of
an action when ‘[t]he same action [is] pending in another state court of this state.’” Beatty
v. Liberty Mut. Ins. Group, 893 N.E.2d 1079, 1084 (Ind. Ct. App. 2008). However, what
Mark was really seeking by his motion to dismiss was to dismiss the underlying
administrative action by the City. Needless to say, it would ordinarily be odd for a civil
plaintiff to invoke a Trial Rule 12 defense to dismiss his or her own civil action; clearly,
Mark did not want outright dismissal of his petition for judicial review before the trial
court, which would have resulted in the demolition order remaining intact. On its face,
Trial Rule 12(B)(8) would not seem to apply to this situation.
Regardless, we will address Mark’s argument that the principles underlying Trial
Rule 12(B)(8) should have precluded the City’s administrative action to demolish the
Executive Inn, given the pre-existing Knox Superior Court case initiated by the DHS and
later joined in by the City which sought to force the Valdeses to repair the property. “Trial
Rule 12(B)(8) implements the general principle that, when an action is pending in an
Indiana court, other Indiana courts must defer to that court’s authority over the case.” Id.
This principle applies when the parties, subject matter, and remedies sought are precisely
the same in two different actions, and it also applies when they are only substantially the
same. Id. “Courts observe this deference in the interests of fairness to litigants,
comity between and among the courts of this state, and judicial efficiency.” Thacker v.
Bartlett, 785 N.E.2d 621, 625 (Ind. Ct. App. 2003).
9
Here, although the parties and subject matter of the Knox Superior Court action and
the City’s administrative action are similar, the remedies sought in the two actions are quite
different and not substantially the same. In fact, it appears that the remedy sought in the
administrative action—demolition—was not available in the Knox Superior Court action.
First, the DHS’s authority for bringing its action was derived from Indiana Code Chapter
22-12-7, which permits the DHS to bring administrative and/or trial court actions to enforce
the State’s fire and building safety codes. Indiana Code Section 22-12-7-7 lists the
sanctions that the DHS may seek to impose against owners (or controllers) of property that
are in violation of the fire and building safety codes, which include requiring the owner to
cease and correct the violation(s), requiring persons to leave and stay away from an area
affected by the violation, revoking permits or licenses associated with property, and/or
imposing civil fines against the owner. Nothing in the statute authorizes the DHS to seek
demolition of a property that is in violation of the fire and building safety codes.
Second, the City relied upon the Act in both issuing the demolition order and in
filing the Knox Superior Court action. The Act permits municipalities to adopt the Act by
ordinance for direct enforcement by municipalities to address the danger of “unoccupied
structures that are not maintained and that constitute a hazard to public health, safety, and
welfare.” Ind. Code § 36-7-9-4.5(a). Indiana Code Section 36-7-9-5 delineates the actions
and orders a municipality’s “enforcement authority” may issue with respect to unsafe
buildings. One such order is for the “demolition and removal of an unsafe building if: (A)
the general condition of the building warrants removal; or (B) the building continues to
require reinspection and additional abatement action after an initial abatement action was
10
taken pursuant to notice and an order . . . .” I.C. § 36-7-9-5(a)(7). It is under this subsection
that Eisenhut had the authority to administratively issue the original demolition order.
Such administrative orders for demolition are subject first to review by a municipal
“hearing authority” under Indiana Code Section 36-7-9-7, and then to judicial review under
Indiana Code Section 36-7-9-8.
In addition to purely administrative action, subject to judicial review, a municipality
“may bring a civil action regarding unsafe premises in the circuit, superior, or municipal
court of the county.” I.C. § 36-7-9-17(a). This statute further provides:
A civil action may not be initiated under this section before the
final date of an order or an extension of an order under section
5(c) of this chapter requiring:
(1) the completion; or
(2) a substantial beginning toward accomplishing the
completion;
of the required remedial action.
I.C. § 36-7-9-17(b). This language contemplates that the bringing of a civil action is
intended to force a recalcitrant property owner to comply with already-existing
administrative orders. It is under this statute that the City was authorized to file the Knox
Superior Court action. That action specifically was an “emergency” action to force the
Valdeses to comply with previous orders by Eisenhut to immediately vacate the Executive
Inn and to prevent anyone from entering it, which the Valdeses were ignoring. App. p.
283. Ordering the vacating of an unsafe building and preventing anyone else from entering
11
such a building are additional actions a municipality’s “enforcement authority” may take
under Indiana Code Section 36-7-9-5.
Indiana Code Section 36-7-9-17 also specifies that trial courts “may grant one (1)
or more of the kinds of relief authorized by sections 18 through 22 of this chapter.” I.C. §
36-7-9-17(a). This limited grant of authority seems to indicate that trial courts are not
necessarily empowered to issue any order that a municipality could have issued by itself
under Indiana Code Section 36-7-9-5. No language in sections 18 through 22 refer to a
trial court having the same authority as a municipality has under Section 36-7-9-5, nor do
any of them mention a trial court having the authority to order the demolition of a building.
The Knox Superior Court action was always aimed towards trying to make the
Executive Inn safe and to force the Valdeses to make needed repairs and not to demolish
it, consistent with the extent of trial court authority regarding unsafe buildings and fire and
building safety regulations under Indiana Code Chapter 36-7-9 and Indiana Code Chapter
22-12-7. Thus, the demolition remedy sought in the purely administrative action by the
City was not substantially the same as, and appears not even to have been a possibility in,
the Knox Superior Court action. The principles underlying Indiana Trial Rule 12(B)(8)
did not preclude the City from administratively seeking demolition of the Executive Inn,
notwithstanding the Knox Superior Court action.
Mark also invokes the election of remedies doctrine as a basis for precluding the
City’s demolition action, claiming the City had chosen to participate in the Knox Superior
Court action and thus could not bring a separate administrative demolition action. The
election of remedies doctrine is equitable in origin and is intended to prevent excessive and
12
repetitive litigation. McMichael v. Scott County School Dist. No. 2, 784 N.E.2d 1067,
1070 (Ind. Ct. App. 2003). “The doctrine applies when a party who has two co-existing
but inconsistent remedies elects to pursue one remedy to a conclusion rather than sue on
the other remedy.” Id. If there are concurring effectual remedies, choosing one remedy
and prosecuting it without interruption excludes all other remedies. Id.
Here, it is not clear that the City uninterruptedly prosecuted the Knox Superior Court
action to a definitive conclusion or that the two actions were necessarily conflicting.
Having been provided with copies of the CCS in the Knox Superior Court case and some,
but not all, of the pertinent motions and rulings in that case, the purpose of that case was
to compel remediation to the Executive Inn and/or to prohibit any persons from entering
the property, except for workers or the Valdeses, until the building was brought up to code.
At one point a permanent injunction was sought against the Valdeses, but it does not appear
that one was ever entered. Rather, there was a preliminary injunction, which was
subsequently modified.
At the time that Eisenhut filed his demolition order, the City notified the Knox
Superior Court of it. After that date, in December 2010, there was further action in the
Knox Superior Court case consisting of the Valdeses filing a motion asking the court to
find that the Executive Inn “is in compliance with all applicable fire and building safety
codes . . . .” Appellee’s App. p. 15. The Knox Superior Court denied this motion on
January 11, 2011. There is no further action listed in the CCS after this date, aside from
attorney appearances and withdrawals of appearances. It thus appears that the City pursued
the Knox Superior Court action until such time as it became apparent that the Valdeses
13
were not going to adequately remediate the problems at the Executive Inn despite having
several years to do so, at which time it switched tactics and sought demolition of the hotel,
using an administrative procedure that does not seem to have been available to the Knox
Superior Court. We do not believe the City’s actions violated the election of remedies
doctrine.
Finally, Mark argues that the City’s actions violated the separation of powers
doctrine. Article 3, Section 1 of the Indiana Constitution states, “The powers of the
Government are divided into three separate departments; the Legislative, the Executive
including the Administrative, and the Judicial: and no person, charged with official duties
under one of these departments, shall exercise any of the functions of another, except as in
this Constitution expressly provided.” “The judiciary is one of the three co-equal branches
of government and its independence is essential to an effective running of the government.”
State v. Monfort, 723 N.E.2d 407, 411 (Ind. 2000). Mark asserts that the City’s
administrative action infringed upon the independence of the Knox Superior Court.
We observe that it has long been held that the separation of powers doctrine of
Article 3 does not apply to municipalities and their agencies. Willsey v. Newlon, 161 Ind.
App. 332, 333, 316 N.E.2d 390, 391 (1974). We accept that a municipal-level
administrative agency cannot take action that conflicts with or purports to supersede the
actions of a State trial court. See Indiana Dep’t of Natural Res. v. Newton County, 802
N.E.2d 430, 433 (Ind. 2004) (holding county could not pass ordinances purporting to
regulate State agency activity). As we have discussed, however, there is no inherent
conflict between the Knox Superior Court action and the City’s administrative action, given
14
the different remedies sought in the two actions and the fact that demolition could only be
sought via the administrative action.4
Whether framed as an issue of comity, election of remedies, or separation of powers,
there was no bar to the City seeking demolition of the Executive Inn through administrative
proceedings under the Act because the action did not irreconcilably conflict with the pre-
existing Knox Superior Court action. The trial court properly denied Mark’s motion to
dismiss.
III. Due Process
Next, we address Mark’s claim that his procedural due process rights were violated
by the City, the Commission, and the trial court in the issuance and eventual affirmance of
the demolition order. The requirements of due process are not set in stone and may vary
based on the circumstances, in accordance with the balancing test adopted by the Supreme
Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976):
[I]dentification of the specific dictates of due process generally
requires consideration of three distinct factors: First, the
private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the
Government’s interest, including the function involved and the
fiscal and administrative burdens that the additional or
substitute procedural safeguard would entail.
4
If the Knox Superior Court had found the Executive Inn to be adequately repaired, then the City’s seeking
to demolish the building in a separate administrative action would be troublesome, but the court made no
such finding.
15
The most basic requirement of procedural due process is the right to be heard at a
meaningful time and in a meaningful manner. Parker v. Indiana State Fair Bd., 992 N.E.2d
969, 978 (Ind. Ct. App. 2013). This court has held that, as a general rule, a municipality’s
adherence to the Act’s procedures in addressing unsafe buildings affords a property owner
sufficient due process protection. Starzenski v. City of Elkhart, 659 N.E.2d 1132,
1139 (Ind. Ct. App. 1996), trans. denied, cert. denied. Although a property owner’s interest
in preservation of his or her property is undeniable, governments have a converse and very
strong police power interest in enforcing building safety regulations, even to the extent of
requiring the demolition of buildings, for purposes of public health, safety, or welfare. See
409 Land Trust v. City of South Bend, 709 N.E.2d 348, 351 (Ind. Ct. App. 1999), trans.
denied.
Mark alleges that the City’s February 22, 2011 order modifying Eishenhut’s
demolition order to provide the Valdeses until December 1, 2011, to repair the Executive
Inn failed to provide him adequate notice of what needed to be done to save the property
from demolition, because it did not provide a detailed list of precisely what repairs needed
to be performed. As we held earlier, however, the Valdeses waived the ability to challenge
any alleged deficiencies in the February 22, 2011 order by not timely seeking judicial
review of that order. They were not entitled to wait until the December 1, 2011 deadline
passed, and only then attempt to raise a claim that the February 22, 2011 order was
inadequate. Moreover, it appears that there was a list of needed corrective action that was
prepared during the Knox Superior Court proceedings that the Valdeses never completed,
thus giving notice of the numerous deficiencies of the hotel.
16
Mark also contends that the hearing conducted on December 1, 2011, did not meet
due process requirements because the Valdeses were not permitted to cross-examine
Eisenhut and were not permitted to present any evidence as to their attempts to remediate
the property. Although it is true that the Commission prevented the Valdeses’ attorney
from cross-examining Eisenhut, the transcript of that hearing does not indicate that the
Commission prevented the Valdeses from presenting evidence. Rather, after Eisenhut
testified, one of the Commission members stated, “you’ve heard what the City has said and
what the City Inspector has said, so, I guess that we’d like for you to respond to that and
help us to understand your side.” App. p. 200. The Valdeses’ attorney and James then
made lengthy statements to the Commission regarding efforts to obtain permits, unfruitful
efforts to obtain funding to make needed repairs, claims that they did not have notice of
what needed to be done to the property to make it acceptable, and expressing their hope
that the incoming administration would be more fair to the Valdeses.
Also, the December 1, 2011 hearing represented the culmination of close to five
years of litigation, beginning with the Knox Superior Court action initiated by DHS in
April 2007. Despite numerous proceedings in that case, as well as two lengthy hearings
before the Commission that resulted in it giving the Valdeses an additional ten months to
repair the Executive Inn, they never were able to do so to the satisfaction of the DHS, the
City, or the Knox Superior Court. Mark does not contend that any of the previous hearings
or proceedings regarding the Executive Inn failed to comply with due process
requirements. The Valdeses had multiple opportunities to argue the case.
17
Mark also fails to adequately explain how a more “formal” hearing on December 1,
2011, as he claims should have taken place, would have led to more time to attempt to
rehabilitate the Executive Inn. The evidence is that the Valdeses did not even attempt to
seek any permits for repair of the hotel until late October 2011—approximately eight
months after the February 22, 2011 order was issued and just a little over a month before
the deadline for fully repairing the building. The evidence also is clear that, even if those
permits had been granted by Eisenhut as Mark argues they should have been, the work they
would have authorized would have fallen well short of what was necessary to correct the
multiple problems the building had. Even where there are alleged procedural defects in an
administrative proceeding, such errors may be deemed harmless and do not per se require
reversal of a ruling when the record clearly demonstrates that additional process would not
have led to a different result. See Berzins v. Review Bd. Of Indiana Employment Sec.
Div., 439 N.E.2d 1121, 1127-28 (Ind. 1982); Jones v. Housing Auth. of City of South Bend,
915 N.E.2d 490, 497 (Ind. Ct. App. 2009), trans. denied. Such is the case here.5
Finally, Mark suggests the trial court additionally denied him due process when it
did not hold an evidentiary hearing on his petition for judicial review. We believe Mark
5
We also note that, as a statutory matter, it is not clear that the Act required that there be any hearing with
respect to the December 1, 2011 demolition order. Indiana Code Section 36-7-9-7(g) provides that if a
hearing authority modifies an enforcement authority’s order, “the hearing authority shall issue a continuous
enforcement order . . . .” (Emphasis added). A “continuous enforcement order” is one that “can be enforced,
including assessment of fees and costs, without the need for additional notice or hearing . . . .” I.C. § 36-7-
9-2. Thus, when the Commission modified the City’s original demolition order by providing the Valdeses
an additional ten months to remediate the Executive Inn, it appears to have been a “continuous enforcement
order” that could have been enforced without any additional hearing.
18
has waived this claim, or more accurately, invited any alleged error on this point. The
doctrine of invited error prohibits a party from taking advantage of an error that he or she
commits, invites, or which is the natural consequence of his or her own neglect or
misconduct. Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 133 (Ind. 2005). In denying
Mark’s motion to correct error and for an evidentiary hearing, filed after the trial court had
already issued its ruling, the court noted that Mark’s counsel had, in chambers and during
the October 9, 2012 hearing addressing the parties’ motions to dismiss, stated that no
further hearings on the matter would be required. Although we cannot review what Mark’s
counsel said in chambers, the trial court specifically asked at the October 9, 2012 hearing
whether there would be any need for “additional argument beyond today,” and counsel
responded that he had no plans for “any additional hearing and no evidence . . . based upon
the progress of the case up to now.” Tr. pp. 4-5. Counsel then argued, over the City’s
objection, that in order to fairly review the case the trial court would need to review the
hearings from November 30, 2010 and December 7, 2010, but gave no indication that any
further trial court hearing in the case was necessary. Counsel therefore invited the trial
court to rule in this case without conducting an evidentiary hearing, and Mark cannot now
complain about that alleged error.
We do acknowledge that counsel apparently changed his mind regarding the
necessity of an evidentiary hearing after reviewing the recordings of the November 30,
2010 and December 7, 2010 hearings and believing them to be inaudible in large sections
and finding that none of the exhibits introduced at those hearings had been preserved. We
reiterate our earlier holding that Mark is precluded from seeking judicial review of the
19
February 22, 2011 order that resulted from the November 30, 2010 and December 7, 2010
hearings. Thus, the quality of the recording of those hearings and the lack of exhibits from
them is now irrelevant. Indeed, it might have been easier to reconstruct what happened at
those hearings if the Valdeses had immediately sought judicial review of the February 22,
2011 order rather than waiting until December 2011 to do so. The trial court’s task here
solely was to review the propriety of the December 1, 2011 order. Although in its rulings
the court also referred to the earlier proceedings in this case, and the entire background of
this case is indeed helpful in understanding the context of the final demolition order, there
was no need for the trial court to conduct an evidentiary hearing to attempt to reconstruct
the hearings that led to the February 22, 2011 order. As for the December 1, 2011 order,
all the trial court needed to do to satisfy its review obligation was to re-examine the
evidence upon which the Commission acted in issuing that order, which obligation was
fulfilled by reviewing the recording and transcript of the December 1, 2011 hearing. See
Kollar v. Civil City of South Bend, 695 N.E.2d 616, 620 (Ind. Ct. App. 1998) (holding trial
court may satisfy its review obligation under the Act either by conducting an evidentiary
hearing or by reviewing the evidence considered by the municipality), trans. denied. The
manner in which the trial court conducted its judicial review did not violate due process.
IV. Trial Court’s Ruling
Mark also argues that the trial court erred on the merits in denying his petition for
judicial review. Indiana Code Section 36-7-9-8(c) states that a trial court should review a
municipality’s unsafe building action “de novo.” “De novo” as used in this statute “does
not authorize a trial court to substitute its judgment for that of the agency below.” Id. at
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619. Rather, a trial court should reverse a municipality’s action only if it is “‘(1) arbitrary,
(2) capricious, (3) an abuse of discretion, (4) unsupported by the evidence or (5) in excess
of statutory authority.’” Id. (quoting Uhlir v. Ritz, 255 Ind. 342, 345-46, 264 N.E.2d 312,
314 (1970)).
Mark’s argument on this issue is brief, and aside from the due process arguments
we have already rejected, boils down to a claim that it was premature to order demolition
of the Executive Inn because there exists a reasonable probability that it can and will be
fully repaired. It is true that when “a building can be reasonably repaired, it may be
improper to order demolition of the property.” 409 Land Trust, 709 N.E.2d at 350.
However, when a property owner has been given ample opportunity to repair a property
but fails to do so within a reasonable period of time, demolition of the property may be
appropriate. Id. This is precisely the situation here, as we have discussed. The Valdeses
had several years in which to adequately rehabilitate the Executive Inn to the point where
it could once again be a viable business property, or even habitable, but failed to do so.
The City need not wait indefinitely for the needed repairs to be made.
Even assuming the Valdeses should have been issued the permits they requested in
October 2011, that clearly was a case of being a day late and a dollar short. Even if the
work requested by the permits had been performed, it would have been insufficient to make
the Executive Inn conform to all the necessary codes. Although there have been findings
and discussions during the course of the proceedings that the Executive Inn is not “unsafe”
as long as it is not occupied, and it is not currently occupied, a long-vacant building that is
not up to code poses significant public health and safety risks with respect to vagrancy,
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neighboring buildings, and first responders who might have to address fires or crimes at
the property. The Act specifically includes in its definitions of unsafe buildings one that
is vacant and “not maintained in a manner that would allow human habitation, occupancy,
or use under the requirements of a statute or an ordinance . . . .” I.C. § 36-7-9-4(a)(6). We
cannot find error in the trial court’s ruling that the Commission’s December 1, 2011 order
for demolition of the Executive Inn was not arbitrary, capricious, an abuse of discretion,
unsupported by the evidence, or in excess of statutory authority.
V. Motion to Correct Error
We now address Mark’s argument that the trial court erred in denying his motion to
correct error. We review rulings on motions to correct error for an abuse of discretion.
Scales v. Scales, 891 N.E.2d 1116, 1120 (Ind. Ct. App. 2008). Much of the motion raised
issues we have already addressed and rejected, such as the trial court’s not holding an
evidentiary hearing, its denial of the motion to dismiss, and that the Executive Inn
purportedly was not “unsafe” because no one currently resided in it.
The remainder of the motion alleged the existence of newly discovered evidence,
supported by affidavits from Mark and Timothy Minnette, a real estate agent. Motions to
correct error based on the alleged existence of newly discovered evidence are disfavored.
Id. To prevail upon a motion to correct error based on alleged newly discovered evidence,
a party must:
demonstrate that the evidence could not have been discovered
and produced at trial with reasonable diligence; that the
evidence is material, relevant, and not merely cumulative or
impeaching; that the evidence is not incompetent; that [the
party] exercised due diligence to discover the evidence in time
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for the final hearing; that the evidence is worthy of credit; and,
that the evidence raises the strong presumption that a different
result would have been reached upon retrial.
Matzat v. Matzat, 854 N.E.2d 918, 920 (Ind. Ct. App. 2006).
The alleged newly discovered evidence in this case relates almost entirely to claims
that Eisenhut “stonewalled” attempts to repair the Executive Inn by refusing to issue work
permits and/or by intimidating contractors who proposed to work on the building. Some
of this alleged evidence was in fact related to the Commission during the December 1, 2011
hearing and, thus, was not “newly discovered”; it was already considered and rejected both
the Commission and by the trial court in reviewing the Commission’s demolition order.
Other matters in Mark’s affidavit relate to events dating back to 2009 through December
1, 2011, and it is unclear why such evidence could not have been discovered earlier and
presented to the Commission. Finally, there is one example of alleged intimidation by
Eisenhut that was not and could not have been discovered until after the December 1, 2011
hearing. However, it appears that this evidence was at best merely cumulative of other
evidence of Eisenhut’s alleged interference in the Valdeses’ attempts to repair the
Executive Inn. Moreover, it relates hearsay statements by third parties to the affiants of
things Eisenhut allegedly said to the third parties, not things said to the affiants themselves.
We do not believe the trial court was required to find such evidence to be either “worthy
of credit” or that it raised a “strong presumption” that the result of either the Commission’s
December 1, 2011 hearing or the trial court’s judicial review would have been different if
such evidence had been presented. We cannot say the trial court abused its discretion in
denying the motion to correct error.
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VI. Appeal Bond
The final argument Mark raises is that the trial court’s required $500,000 appeal
bond as a condition of staying demolition of the Executive Inn during the pendency of this
appeal is excessive. A trial court’s determination as to the amount of a bond as a condition
of staying execution of a judgment during appeal will not be disturbed absent an abuse of
discretion. Kocher v. Gertz, 824 N.E.2d 671, 675 (Ind. 2005). Additionally, our motions
panel has already denied a request by Mark to reduce the amount of the appeal bond.
Although a writing panel of this court is free to disagree with and reverse a decision by our
motions panel, we generally are reluctant to do so in the absence of clear authority
establishing that the motions panel erred as a matter of law. Oxford Fin. Group, Ltd. V.
Evans, 795 N.E.2d 1135, 1141 (Ind. Ct. App. 2003).
Indiana courts often decline to address the issue of the amount of an appeal bond as
part of a decision on the merits, finding the issue to be moot at that point in the case. See
In re Guardianship of C.M.W., 755 N.E.2d 644, 651-52 (Ind. Ct. App. 2001). Moreover,
Mark has not provided us with a transcript of the trial court hearing on the motion to stay
execution and the City’s request for an appeal bond requirement; we have before us “only
the assertions in the parties’ filed motions, responses, and attachments.” See Kocher, 824
N.E.2d at 675. In such a situation, we cannot say that the trial court abused its discretion
in fixing the amount of the appeal bond. See id.; Anthrop v. Tippecanoe School Corp., 156
Ind. App. 167, 173, 295 N.E.2d 637, 642 (1973). We thus decline to revisit the motions
panel’s decision not to reduce the amount of the appeal bond.
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Conclusion
Although Mark timely sought judicial review of the December 1, 2011 demolition
order, he waived claims related to the adequacy of the February 22, 2011 order by not
timely challenging that order. The trial court properly denied Mark’s motion to dismiss
because the administrative action for demolition of the Executive Inn did not irreconcilably
conflict with the pre-existing Knox Superior Court action governing the property. Mark
also has not established that he was denied due process with respect to the ultimate
demolition order. He also has not demonstrated that the trial court erred in affirming the
Commission’s action, denying his motion to correct error, or requiring the posting of a
$500,000 bond to stay enforcement of the demolition order pending appeal. We affirm in
all respects.
Affirmed.
CRONE, J., and PYLE, J., concur.
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