City of Gary v. Redmond

• Decision Date: 18 February 1986
• Docket Number: No. 3-485A101,3-485A101
• Citation: 489 N.E.2d 543
• Parties: CITY OF GARY, Kenneth Goodwin, Calvin Fossett, Defendants-Appellants, v. Sam REDMOND a/k/a Samuel H. Redmond, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 543

489 N.E.2d 543

CITY OF GARY, Kenneth Goodwin, Calvin Fossett, Defendants-Appellants, v. Sam REDMOND a/k/a Samuel H. Redmond, Plaintiff-Appellee.

No. 3-485A101.

Court of Appeals of Indiana,

Third District.

Feb. 18, 1986.

Zena Crenshaw, Asst. City Atty., Gary, for defendants-appellants.

Hilbert L. Bradley, Gary, for plaintiff-appellee.

GARRARD, Judge.

Samuel H. Redmond (Redmond) brought a cause of action under the Indiana Tort Claims Act ¹ for damages resulting from the demolition of his building located in Gary, Indiana. Redmond claimed damages were warranted due to the fact that he received no actual prior notice of the demolition. Redmond brought this action against the City of Gary, Indiana, which by and through its agents, Kenneth Goodwin and Calvin Fossett (collectively referred to as City), had ordered the demolition of Redmond's building, against Moton and Family Wrecking (Moton), whom City had authorized to demolish the building, and against Mose Roberts, who completed the demolition after Moton experienced equipment trouble.

City argued that the building constituted a public safety hazard of an emergency nature permitting demolition without prior notice under The Unsafe Buildings Ordinance of the City of Gary, Indiana, No. 4790. City authorized Moton to undertake the demolition specifying that the demolition was to begin on or before October 4, 1982, and be completed by December 6, 1982. Moton began the demolition in September of 1982 but was unable to finish the job because of equipment problems. The building was not completely demolished until May of 1983 after Moton asked Mose Roberts to complete the job for it.

Entering judgment for Redmond in the sum of One Thousand Two Hundred Dollars ($1,200.00), the trial court concluded that City was liable for failing to give Redmond prior notice of the impending demolition of his building in that no emergency existed obviating the need for prior notice. City does not contest the trial court's determination of liability. Rather, City takes issue with the trial court's award of attorney fees pursuant to 42 U.S.C. Section 1988, entered upon Redmond's subsequent petition.

City presents only one issue for review:

Whether Redmond is entitled to attorney fees pursuant to 42 U.S.C. Section 1988 as the prevailing party in a case amounting to a common law tort claim and properly resolved pursuant to the Indiana Tort Claims Act.

The trial court determined that attorney fees were warranted pursuant to 42 U.S.C. Section 1988, which provides in pertinent part:

"In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title [42 U.S.C.], title IX of Public Law 92-318 [20 U.S.C. 1681 et seq.], or title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000 d et seq.], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."

In Maher v. Gagne (1980), 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653, the Supreme Court concluded that an award of attorney's fees under Section 1988 does not necessarily require a plaintiff's success under one of the enumerated sections or titles found in Section 1988. Rather, fees under Section 1988 can be awarded in situations where "the plaintiff prevails on a wholly statutory, non-civil rights claim pendent to a substantial constitutional claim or in [a case] in which both a statutory and a substantial constitutional claim are settled favorably to the plaintiff without adjudication." 448 U.S. at 132, 100 S.Ct. at 2576. ² Recently, the Supreme Court reiterated the rationale behind extending Section 1988 to cover situations where the constitutional claim goes unresolved. In Smith v. Robinson (1984), --- U.S. ----, 104 S.Ct. 3457 at 3465, 82 L.Ed.2d 246, the Court stated:

"Congress' purpose in authorizing a fee award for an unaddressed constitutional claim was to avoid penalizing a litigant for the fact that courts are properly reluctant to resolve constitutional questions if a nonconstitutional claim is dispositive."

Since the trial court did not specifically indicate the source of law upon which it entered judgment for Redmond on the liability issue, our review of the attorney's fee award must first focus on the question of whether the trial court's judgment indicates that Redmond was the prevailing party on a claim under one of the civil rights sections or titles explicitly enumerated in 42 U.S.C. Section 1988 or that Redmond was the prevailing party on a wholly statutory, non-civil rights claim. This determination is important since an award of attorney's fees to the prevailing party on a claim recognized under 42 U.S.C. Section 1988 is a discretionary matter with the trial court and is reviewable only for an abuse of discretion. On the other hand, when a party prevails on a wholly statutory, non-civil rights claim, attorney's fees under 42 U.S.C. Section 1988 are available only if the claim is pendent to a substantial constitutional claim. Maher, supra. If a pendent, substantial constitutional claim is present the matter of awarding attorney's fees again becomes a discretionary matter.

I.

The trial court entered the following conclusions of law upon which liability was founded:

"Conclusions of Law

1. That the law is with the plaintiff and against the defendants on the issue of notice in this cause.

2. That in view of the lengthy lapse of time between the date (September 21, 1982) of authorization given by the Defendant, CITY OF GARY, INDIANA, to the Defendant, MOTON AND FAMILY WRECKING, and the date (May, 1983) when the demolition of the structure in question was completed, there was no emergency situation existing which would obviate the need for prior notice to the plaintiff.

3. That the Court need not determine the collateral issue raised by the plaintiff, that is, whether or not the existing Ordinance No. 4790 (The Unsafe Buildings Ordinance of the City of Gary, Indiana) is unconstitutional in not requiring property owners to receive actual notice of an intended demolition of a structure in an emergency situation.

4. That the defendants are liable to the plaintiff for failure to give notice of the intended demolition of the plaintiff's structure.

5. That the price paid by the plaintiff for such structure, less an amount allocated for the underlying land, or the sum of One Thousand Two Hundred ($1,200.00) Dollars should be paid as damages by the defendants to the plaintiff.

6. That there was no wilful or wanton misconduct on the part of the defendants as would warrant the imposition of punitive damages."

City's failure to give notice was the issue upon which the trial court determined liability. Of the federal statutory provisions enumerated in 42 U.S.C. Section 1988, the only provision under which failure to give prior notice might establish a cause of action is 42 U.S.C. Section 1983. ³ The constitutional issue was whether City deprived Redmond of his property without due process of law in violation of the Fourteenth Amendment. The question thus becomes whether the facts of this case and the conclusions of the trial court are sufficient to support a claim under 42 U.S.C. Section 1983.

In Parratt v. Taylor (1981), 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420, the Supreme Court enumerated the essential elements of a Section 1983 action as:

"(1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States."

451 U.S. at 535, 101 S.Ct. at 1912. The first requirement is clearly satisfied in the present case since the City's defense was that they were authorized under Ordinance No. 4790 to have Redmond's building demolished. ⁴ Turning to the second requirement, we find the discussion of procedural due process in the Parratt case to be particularly instructive.

In Parratt, a prisoner had ordered a hobby kit through the mail which was negligently lost by a state employee at the institution where the prisoner was incarcerated. The Supreme Court concluded that although the negligent loss of the hobby kit amounted to a deprivation of property, due process was satisfied through the State's tort claim procedure and a claim for relief under 42 U.S.C. Section 1983 was not presented. The court emphasized its point with a discussion of those situations in which available post-deprivation remedies could satisfy due process in the face of summary state action adversely affecting property rights:

"We have, however, recognized that postdeprivation remedies made available by the State can satisfy the Due Process Clause. In such cases, the normal predeprivation notice and opportunity to be heard is pretermitted if the State provides a postdeprivation remedy. In North American Cold Storage Co. v. Chicago, 211 U.S. 306 [29 S.Ct. 101, 53 L.Ed. 195] (1908), we upheld the right of a State to seize and destroy unwholesome food without a preseizure hearing. The possibility of erroneous destruction of property was outweighed by the fact that the public health emergency justified immediate action and the owner of the property could recover his damages in an action at law after the incident. In Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 [70 S.Ct. 870, 94 L.Ed. 1088] (1950), we upheld under the Fifth Amendment Due Process Clause the summary seizure and destruction of drugs without a preseizure hearing. Similarly, in Fahey v. Mallonee, 332 U.S. 245 [67 S.Ct. 1552, 91 L.Ed. 2030] (1947), we recognized that the protection of the public interest against economic harm can justify the immediate seizure of property without a prior hearing when substantial questions are raised about the competence of a bank's management. In Bowles v. Willingham, 321 U.S. 503 [64 S.Ct. 641, 88 L.Ed. 892] (1944), we upheld in the face of a due process...