Eads v. Hill
| Citation | 563 N.E.2d 625 |
| Decision Date | 05 December 1990 |
| Docket Number | No. 49A02-8902-CV-35,49A02-8902-CV-35 |
| Parties | Harry E. EADS and Robert E. Hooser, Appellants (Defendants Below), v. Kristie L. HILL, in her Official Capacity as Corporation Counsel for the Consolidated City of Indianapolis and Marion County, Indiana, Appellee (Plaintiff Below). |
| Court | Court of Appeals of Indiana |
Tommy L. Strunk, Indianapolis, for appellants.
Andrew P. Wirick, Asst. Corp. Counsel, City-County Legal Div., Indianapolis, for appellee.
Harry E. Eads and Robert E. Hooser appeal the trial court's judgment declaring the Adult Relaxation Center an indecent nuisance, perpetually enjoining its operation, perpetually enjoining Eads and Hooser from operating any indecent nuisance, ordering the real estate upon which the relaxation center is located closed for any purpose for one year, and ordering the personal property in the relaxation center removed within one week, all pursuant to an action initiated by the Consolidated City of Indianapolis and Marion County, Indiana (City) under the Indecent Nuisance Act, IC 34-1-52.5-1 et seq. (1988).
We affirm.
1. Whether the trial court erred in denying Eads and Hooser's Motion to Strike Hooser's initial response to City's Request for Admissions.
2. Whether the trial court erred in denying Eads and Hooser's Motion for Sanctions.
3. Whether the trial court erred in finding Hooser is owner of an interest in the relaxation center within the meaning of IC 34-1-52.5-2 (1988).
4. Whether procedures in IC 34-1-52.5-4(b) and (c) (1988) impermissibly conflict with Ind. Trial Rules 4.1, 4.7, 6(B), 6(C), 53.5 or 76.
5. Whether IC 34-1-52.5-4(e) (1988) violates Eads and Hooser's Fourth or Fourteenth Amendment rights.
6. Whether the evidence is sufficient to establish Eads and Hooser knowingly own an interest in a place upon which an indecent nuisance is conducted, permitted, continued or exists.
On September 16, 1988 City filed a verified complaint against Eads and Hooser for injunctive relief from an indecent nuisance. City alleged the relaxation center constituted an indecent nuisance because six (6) separate acts of prostitution occurred on the premises between March 3, 1987 and September 16, 1988. The trial court issued a temporary order restraining the removal of any personal property from the relaxation center and set a hearing on the request for a preliminary injunction for September 22, 1988. Eads and Hooser received more than five (5) days notice of the hearing. On September 20, 1988 Eads and Hooser appeared by counsel and filed a motion for continuance of the preliminary injunction hearing. The trial court granted the continuance and a preliminary injunction enjoining the use of the relaxation center for any use until a decision on the merits of the verified complaint. A hearing was held on the request for a permanent injunction on December 2, 1988. On December 12 the trial court declared the relaxation center an indecent nuisance, perpetually enjoined its operation, ordered the real estate upon which the center was located closed for any purpose for one year, ordered the personal property removed within one week, and perpetually enjoined Eads and Hooser from maintaining and operating any other indecent nuisance.
Eads and Hooser appeal.
Eads and Hooser claim the trial court erred in denying their Motion to Strike Hooser's initial response to City's Request for Admissions that accompanied the complaint and summons. Although Hooser's attorney entered his appearance on September 20, 1988, Hooser answered the requested admissions on or about September 29, 1988 without the advice of his counsel. Thereafter, Hooser's counsel moved to strike the answers and objected to the answers when City offered them into evidence during the trial. The Motion to Strike was denied and the objection overruled. Later, during Eads and Hooser's case in chief, Hooser introduced into evidence the answers he prepared with advice of counsel.
It is within the discretion of the trial court to permit answers to admissions to be withdrawn or amended "when the presentation of the merits of the action will be subserved thereby and the party who obtained the admissions fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits." Ind. Trial Rule 36(B). Both conditions must be satisfied before withdrawal is appropriate. Gary Municipal Airport Authority District v. Peters (1990), Ind.App., 550 N.E.2d 828; Stewart v. Stewart (1987), Ind.App., 506 N.E.2d 1132. We will reverse the denial of a motion to withdraw admissions only for an abuse of discretion. Gary Municipal Airport.
Hooser failed to make any showing the withdrawal or amendment of the admissions would assist in reaching a just resolution of the action on the merits. Neither the Motion to Strike, the objection, nor Appellants' Brief argues or makes any showing that withdrawal was appropriate to subserve the merits of the action. Therefore, the trial court properly concluded Hooser failed to meet the burden placed upon him by T.R. 36(B).
Eads and Hooser also claim the trial court erred in overruling Hooser's Motion to Strike because Hooser responded under the mistaken belief he had to respond to the Request for Admissions. Hooser's belief was not mistaken; T.R. 36(A) required Hooser to respond or deem the matter admitted. 1
The trial court appropriately exercised its discretion when it denied Eads and Hooser's Motion to Strike Hooser's filed response to City's Request for Admissions.
Eads and Hooser claim the trial court erred when it denied their Motion for Sanctions in which they sought to exclude evidence of the acts of prostitution alleged in City's complaint on the grounds City willfully disobeyed the Request for Discovery. Whether sanctions should be imposed for a party's failure to comply with discovery is committed to the sound discretion of the trial court. Stout v. A.M. Sunrise Const. Co., Inc. (1987), Ind.App., 505 N.E.2d 500.
Eads and Hooser filed a request for City to produce by October 17, 1988 documents it intended to use as evidence concerning alleged acts of prostitution at the relaxation center by those persons named in the verified complaint. Hooser filed a Motion for Sanctions against City on November 30, 1988 because City had failed to produce copies of judgments in the prostitution prosecutions. The trial court denied the motion.
There is no error. Only one of the prostitution charges had been adjudicated at the time of Eads and Hooser's trial on December 2, 1988. Eads and Hooser were advised and provided with the judgment of conviction as soon as it was available. Thus the record is devoid of any evidence the City willfully disobeyed the Request for Production or that Eads and Hooser were prejudiced by any delay.
The trial court used sound discretion in denying Eads and Hooser's Motion for Sanctions.
The next argument involves the question whether Hooser is an owner of the relaxation center within the meaning of that term as it appears in IC 34-1-52.5-2 (1988), the statute enumerating the persons who may be enjoined from maintaining a nuisance.
A person who uses, occupies, establishes, maintains, or conducts a nuisance and the owner, agent, or lessee of any interest in any such nuisance together with the persons employed in a nuisance is guilty of maintaining a nuisance and shall be enjoined as provided in this chapter.
Hooser argues he is not an owner under the substantial equity theory as it applies to land contracts. See Skendzel v. Marshall (1973), 261 Ind. 226, 301 N.E.2d 641, cert. denied (1974), 415 U.S. 921, 94 S.Ct. 1421, 39 L.Ed.2d 476. Hooser sold the real estate to Eads on an installment contract on August 3, 1987 and since then Eads has acquired substantial equity in the real estate.
Even though the vendee under an installment sale contract obtains equitable title and is vested with possession of the real estate, the vendor retains legal title to the real estate. Skendzel. Thus, Hooser owned an interest in the relaxation center, i.e., the legal interest, at the time of these proceedings. Hooser's legal title to the subject real estate brings Hooser within the parameters of Indiana's Indecent Nuisance Act.
The trial court properly determined Hooser was a proper party to City's action.
Eads and Hooser claim the Indecent Nuisance Act contains procedures that impermissibly conflict with the Indiana Trial Rules. They correctly observe procedural rules take precedence over conflicting statutes. IC 34-5-2-1 (1988); Augustine v. First Federal Savings and Loan Association of Gary (1979), 270 Ind. 238, 384 N.E.2d 1018. However, the conflicts they assert do not exist.
They first claim IC 34-1-52.5-4(b) conflicts with Ind. Trial Rules 4.1 and 4.7. Section 4(b) provides the manner of service of the restraining order; T.R. 4.1 and 4.7 provide the manner of service of an initial complaint and summons. The subject matter is different; there is no conflict.
Next, Eads and Hooser claim the five (5) day notice provision in IC 34-1-52.5-4(c) is invalid because Ind. Trial Rule 6(C) allows a defendant twenty (20) days to file a responsive pleading. Ind. Trial Rule 65(A)(4) states a responsive pleading is not required to an application for a preliminary injunction. Therefore, section 4(c) does not conflict with T.R. 6(C).
Finally, Eads and Hooser argue the provision in IC 34-1-52.5-4(c) that requires the trial court to grant the preliminary injunction as a matter of course if the defendant moves for a continuance or a change of venue or judge conflicts with Ind. Trial Rules 6(B), 53.5 and 76. T.R. 6(B) does not conflict because it concerns enlargement of time to do an act required or allowed by the rules; it does not address continuances of hearing or trial dates. The other rules also do not conflict. The grant of the...
To continue reading
Request your trial
-
Corby v. Swank
...has the burden of demonstrating that it will be prejudiced if the trial court permits withdrawal. T.R. 36(B); Eads v. Hill (1990) Ind.App., 563 N.E.2d 625, 629, trans. denied; see also Royalty Vans, Inc. v. Hill Bros. Plumbing and Heating, Inc. (1993) Ind.App., 605 N.E.2d 1217, 1221, reh'g ......
-
City of Muncie v. Peters
...of a motion to withdraw admissions only for an abuse of discretion. Snell v. Snell, 581 N.E.2d 463 (Ind.Ct.App.1991); Eads v. Hill, 563 N.E.2d 625 (Ind.Ct.App.1990). In discussing the limits of the discretion in ruling on a motion to withdraw admissions, our supreme court stated as Although......
-
In the Matter of K.D. v. the Ind. Dep't of Child Serv.
...CHINS based on mother's admission thereof, despite father's denial and presentation of evidence to refute allegation); Eads v. Hill, 563 N.E.2d 625, 632 (Ind.Ct.App.1990) (a “verified complaint, unrefuted and standing alone, is sufficient to establish ... a preponderance of the evidence”) (......
-
In The Matter Of: K.D v. The Ind. Dep't Of Child, 49A02-1004-JC-462
...were CHINS based on mother's admission thereof, despite father's denial and presentation of evidence to refute allegation); Eads v. Hill, 563 N.E.2d 625, 632 (Ind. Ct. App. 1990) (a "verified complaint, unrefuted and standing alone, is sufficient to establish... a preponderance of the evide......