Aikman v. City of India
| Decision Date | 24 September 2013 |
| Docket Number | No. 49A04–1209–OV–470.,49A04–1209–OV–470. |
| Citation | 995 N.E.2d 18 |
| Parties | John AIKMAN, Appellant–Defendant, v. CITY OF INDIANAPOLIS, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Marion Superior Court; The Honorable David J. Certo, Judge; Cause Nos. 49F12–1205–OV–19672, 49F12–1206–OV–22654.
Karen Celestino–Horseman, Indianapolis, IN, Attorney for Appellant.
Cameron G. Starnes, Jessica Allen, Office of Corporation Counsel, Indianapolis, IN, Attorneys for Appellee.
On May 11, 2012, the Animal Care and Control Division of the Department of Public Safety of the City of Indianapolis (“ACC”) impounded thirty-three dogs belonging to Appellant–Defendant John Aikman. Upon impounding the dogs, ACC alleged that Aikman had committed numerous violations of Chapter 531 of the Revised Code of the Consolidated City and County Indianapolis/Marion, Indiana (“Revised Code”). The alleged violations included the failure to maintain proper identification of all of the dogs, the failure to immunize all dogs over the age of three months against rabies, the failure to affix a tag indicating that a dog has received the required rabies vaccination to the dog's collar, and the failure to provide the dogs with a clean, sanitary, and healthy living environment. The dogs were subsequently released to Aikman on May 22, 2012. On May 30, 2012, ACC impounded fifty-one dogs and puppies belonging to Aikman. Upon impounding the dogs, ACC again alleged that Aikman had committed numerous violations of Chapter 531 of the Revised Code.
On August 17, 2012, following three days of trial, the trial court found that Aikman had committed numerous violations of Chapter 531 of the Revised Code in relation to the events of May 11, 2012, and May 30, 2012. The trial court also entered a permanent injunction which barred Aikman from owning or caring for any animal in Marion County. Aikman appealed. On appeal, Aikman raises numerous claims that we restate as: (1) whether the trial court erred in denying his request for a continuance, (2) whether the trial court abused its discretion in admitting certain evidence at trial, (3) whether the evidence was sufficient to sustain the trial court's determination that Aikman committed numerous violations of Chapter 531 of the Revised Code, and (4) whether Aikman received sufficient notification of the Appellee–Plaintiff City of Indianapolis's (“City”) intention to seek a permanent injunction. We affirm.
On May 11, 2012, Sergeant Jason Kindig of ACC inspected animals owed or kept by Aikman in response to a call from a Greenfield, Indiana animal control officer. Sergeant Kindig observed thirty-three dogs in one parked vehicle that Aikman had driven from Greenfield to Marion County, Indiana with the dogs in the vehicle. Sergeant Kindig issued numerous citations alleging violations of Chapter 531 of the Revised Code, including twenty-six alleged violations of Revised Code section 531–202 (), twenty-six alleged violations of Revised Code section 531–301 (), twenty-six alleged violations of Revised Code section 531–302 (), and thirty-three alleged violations of Revised Code section 531–401 (). ACC impounded the thirty-three dogs. After a hearing on May 22, 2012, the trial court ordered that the dogs be released to Aikman and set the matter for a trial on the alleged citations.
On May 30, 2012, Officer Kimberly Wolsiffer of ACC responded to an anonymous report of care and treatment violations at Aikman's residence. Officer Wolsiffer was able to observe the backyard of the house. However, Aikman would not give consent for Officer Wolsiffer to search the inside of his residence. Officer Wolsiffer applied for and received an administrative warrant to search inside the home. During her search of Aikman's residence, Officer Wolsiffer smelled a strong smell of urine and observed that the conditions of the home were very poor. Officer Wolsiffer observed feces and urine stains on the floor coverings in addition to piles of feces and puddles of urine on the floor. Officer Wolsiffer found that Aikman had fifty-one dogs and puppies in the residence. Officer Wolsiffer issued numerous citations alleging violations of Chapter 531 of the Revised Code, including thirteen alleged violations of Revised Code section 531–202 (), twenty-nine alleged violations of Revised Code section 531–301 (), twenty-nine alleged violations of Revised Code section 531–302 (), and fifty-one alleged violations of Revised Code section 531–401 (). ACC impounded the fifty-one dogs. After a hearing on June 6, 2012, the trial court set the matter for a trial on the alleged citations and ordered that the dogs be held until the conclusion of trial.
The trial was conducted over the course of three days. On June 22, 2012, the first day of trial, the City conducted its examination of Aikman. After the first day of trial, Aikman and his trial counsel suffered a breakdown of the attorney-client relationship. On June 29, 2012, counsel filed a motion to withdraw her appearance as Aikman's counsel. In her motion, counsel indicated that Aikman was aware of her desire to withdraw her appearance.
On July 2, 2012, prior to the second day of trial, the trial court granted counsel's motion to withdraw her appearance. Aikman then requested a continuance. This request was denied. Trial continued with the City presenting the rest of its witnesses. Aikman represented himself during the proceedings conducted on July 2, 2012, engaging in cross-examination of the City's witnesses.
On August 17, 2013, the third day of trial, Aikman, again appearing pro se, presented his case. Aikman called witnesses and examined these witnesses. At the conclusion of the evidence, the trial court found that with respect to the events that occurred on May 11, 2012, Aikman committed twenty-six violations of Revised Code section 531–202, eleven violations of Revised Code section 531–301, and twenty-six violations of Revised Code section 531–302. With respect to the events that occurred on May 30, 2012, the trial court found that Aikman committed thirteen violations of Revised Code section 531–202, fourteen violations of Revised Code section 531–301, twenty-nine violations of Revised Code section 531–302, and fifty-one violations of Revised Code section 531–401. The trial court also issued an order permanently enjoining Aikman from owning or caring for animals in Marion County. This appeal follows.
Aikman contends that the trial court abused its discretion in denying his request for a continuance following the trial court's decision to allow Aikman's counsel to withdraw her appearance on the second morning of trial.
The decision to grant or deny a continuance is within the sound discretion of the trial court, and we will not reverse that decision unless the trial court has abused its discretion. Homehealth, Inc. v. Heritage Mut. Ins. Co., 662 N.E.2d 195, 198 (Ind.Ct.App.1996), trans. denied. A trial court abuses its discretion when it reaches a conclusion which is clearly against the logic and effect of the facts or the reasonable and probable deductions which may be drawn therefrom. Id. If good cause is shown for granting the motion, denial of a continuance will be deemed to be an abuse of discretion. Koors v. Great Southwest Fire Ins. Co., 530 N.E.2d 780, 783 (Ind.Ct.App.1988)[,] [ ( abrogated on other grounds by Martin v. Amoco Oil Co., 679 N.E.2d 139, 144 (Ind.Ct.App.1997) ]; seeInd. Trial Rule 53.5.
The unexpected and untimely withdrawal of counsel does not necessarily entitle a party to a continuance. Koors, 530 N.E.2d at 783. However, the denial of a continuance based on the withdrawal of counsel may be error when the moving party is free from fault and his rights are likely to be prejudiced by the denial. Id.
Further, among the things to be considered on appeal from the denial of a motion for continuance, we must consider whether the denial of a continuance resulted in the deprivation of counsel at a crucial stage in the proceedings. See Homehealth, Inc., 662 N.E.2d at 198. We must also consider whether a delay would have prejudiced the opposing party to an extent sufficient to justify denial of the continuance. Id.
Hess v. Hess, 679 N.E.2d 153, 154 (Ind.Ct.App.1997) (brackets added).
The Marion County local rule regarding the withdrawal of an attorney's appearance states as follows:
All withdrawals of appearances shall be in writing and by leave of Court. Permission to withdraw shall be given only after the withdrawing attorney has given his client ten days written notice of his intention to withdraw, has filed a copy of such with the Court; and has provided the Court with the party's last known address; or upon a simultaneous entering of appearance by new counsel for said client. The letter of withdrawal shall explain to the client that failure to secure new counsel may result in dismissal of the client's case or a default judgment may be entered against him, whichever is appropriate, and other pertinent information such as trial setting date or any other hearing date. The Court will not grant a request for withdrawal of appearance unless the same has been...
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