Groff v. City of Butler
| Decision Date | 29 August 2003 |
| Docket Number | No. 17A03-0303-CV-78.,17A03-0303-CV-78. |
| Citation | 794 N.E.2d 528 |
| Parties | Daniel Lee GROFF, Linda Groff, Maurice Groff, and Ruth Groff, Appellants-Plaintiffs, v. CITY OF BUTLER, Appellee-Defendant. |
| Court | Indiana Appellate Court |
Jason M. Kuchmay, Beckman Lawson, LLP, Fort Wayne, IN, Attorney for Appellants.
Gerald M. McNerney, Butler, IN, Attorney for Appellee.
After the Unsafe Building Committee for the City of Butler ("the City") ordered Daniel, Linda, and Maurice Groff ("the Groffs") to demolish a property due to its unsafe condition, the Groffs appealed the demolition order to the DeKalb Circuit Court. During those proceedings, the City filed a counterclaim against the Groffs requesting that the trial court issue an injunction prohibiting the Groffs "from further and continued violation of the Unsafe Building Law." The trial court affirmed the demolition order and issued the requested injunction against the Groffs. The Groffs appeal raising several issues, which we consolidate and restate as:
I. Whether the Groffs had adequate notice of the hearing held on January 15, 2003;
II. Whether the allegations in the City's counterclaim were properly deemed admitted;
III. Whether the evidence was sufficient to support the City's demolition order;
IV. Whether the evidence was sufficient to warrant the injunctive relief entered against the Groffs; and,
V. Whether the trial court abused its discretion when it ordered the Groffs to pay the City's attorney fees.
Concluding that the trial court abused its discretion when it awarded attorney fees to the City, but that the Groffs have failed to present any argument sufficient to require reversal of the other issues raised in this appeal, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
The Groffs own several properties in Butler, Indiana. In August 2001, a city water department employee entered the basement of one of the Groffs' properties located at 218 West Oak Street for the purpose of shutting off the water. After observing the condition of the basement, he spoke with Amy Schweitzer ("Schweitzer"), the Butler City Planner, to report his observation that there was a half of inch of water, possibly waste water, on the basement floor, a hose pumping raw sewage into the yard, and a significant amount of trash outside the house. Tr. p. 10. Schweitzer then requested permission to inspect the premises, but said permission was not granted; therefore, she obtained an inspection warrant. An inspector was hired to inspect the property on behalf of the City, and he prepared a written report detailing several problems with the house including a deteriorated foundation, deteriorated walls, floors, and gutters, missing siding, numerous problems with the roof, faulty wiring, an open sewer line, signs of sewage on the floor, the presence of E Coli bacteria in the house, and sewage and E Coli in the yard. Ex. Vol., Defendant's Ex. 1. The estimated cost of repair was $33,950, and the inspector recommended demolition given his opinion that repairing the house would not be cost effective. Id.
On April 26, 2002, the Groffs were ordered to demolish the property, and a hearing was scheduled on that order for May 13, 2002, before the City's Unsafe Building Committee and Hearing Authority ("the Committee"). Ex. Vol., Def.'s Ex. 2. Maurice Groff managed the property and was present at the hearing. Maurice had power of attorney for his son and daughter-in-law, Daniel and Linda Groff, the owners of the property. Groff indicated that he intended to make all required repairs to the Oak Street property and had discussed the matter with a contractor. However, Groff could not give the Committee a specific time frame within which the repairs would be made, but indicated that it could take up to 120 days. Groff was then asked to submit a written plan of action for the property addressing all concerns raised in the inspection report at a second hearing to be held on May 28, 2002. Ex. Vol., Def.'s Ex. 3.
At the May 28th hearing, Groff failed to submit the requested plan of action. Groff indicated that he intended to hire a contractor who had given him verbal estimates for the property, but that the contractor had not had the opportunity to prepare a written estimate and was unable to attend the hearing. He also stated that the contractor estimated that it would take 120 days to complete the repairs. Groff was asked when he would have the opportunity to obtain a written estimate, and Groff indicated that he was unwilling to do so or to attend any other hearings. The Committee then affirmed the order to demolish the Oak Street property. Ex. Vol., Def.'s Ex. 4.
On June 5, 2002, the Groffs, by counsel, filed an appeal of the Committee's decision in the Dekalb Circuit Court. On June 28, 2002, the City filed a counterclaim against the Groffs alleging that the Groffs, "either individually or collectively," own five properties, including the Oak Street property, that "have been found to violate" the Unsafe Building Law, and "have been or are now a nuisance." Appellant's App. pp. 116-17. The City therefore alleged that:
5. That the City of Butler has no adequate remedy at law in that unless restrained or enjoined the Groffs will continue to maintain and lease unsafe buildings within the City of Butler, which buildings, in addition to being in violation of the Unsafe Building Law, constitute a nuisance to all tenants and surrounding landowners and neighbors.
6. That the laws of the State of Indiana allow equity to enjoin the continuing violations of statutes and the Unsafe Building Law by the [Groffs].
Appellant's App. p. 8. Finally, the trial court ordered the Groffs to pay the City's attorney fees and costs in the amount of $7,449.53. The Groffs now appeal.
The Groffs argue that they did not receive adequate notice of the January 15, 2003 hearing, and therefore, the trial court's January 31, 2003 order should be vacated. On August 23, 2002, the City requested a hearing date stating that the City "hereby requests the Court schedule this matter for hearing at its earliest convenience." Appellant's App. p. 123. On that same date, the trial court granted the request and scheduled "this matter" for a hearing on January 15, 2003. Appellant's App. p. 126. In their brief, the Groffs admit that they "received a notice, and were aware there was a hearing," but contend that the notice was insufficient. Br. of Appellant at 14 (emphasis in original). Specifically, they argue that they were "confused and unaware of the nature of the [h]earing" because the City's request for a hearing "did not indicate that the [h]earing would be a trial on the merits of the [c]omplaint and [c]ounterclaim." Id.
In support of their argument, the Groffs rely on Maurice Groff's statements to the trial court that he was confused as to what "we're actually here for." Tr. p. 32. Also, after the trial court asked Mr. Groff if he wanted to present any evidence to the court, Mr. Groff replied:
Well, I'm, I'm kind of confused on the matter. Um, I really thought we were here to determine whether the place was to be, um, removed, torn down or whatever. That's what I was under the impression that's what we were here today for to make a judgment on whether it will be demolished or taken away. That was my impression.
It is apparent from Mr. Groff's own statement to the trial court that the Groffs were aware that the purpose of the hearing was to address their appeal of the Committee's demolition order for the Oak Street property. The only other matter pending before the court was the City's counterclaim requesting the injunction, which related not only to the Oak Street property, but also to four other properties owned by the Groffs. Mr. Groff admitted that the Groffs had received notice of the counterclaim and had read it. Tr. pp. 4-5. Therefore, the Groffs clearly had notice of the issues pleaded and pending before the court and the City's request for a hearing "on this matter" was adequate notice that the hearing would constitute a trial on the merits of both the Groffs' complaint and the City's counterclaim.
Next, the Groffs argue that the City's motion at the January 15, 2003 hearing to have the allegations in the counterclaim deemed admitted was inadequate because the City did not file a written motion. At the hearing, the City moved to have the allegations in its counterclaim deemed admitted because the Groffs failed to file a responsive pleading. Pursuant to Indiana Trial Rule 8(D), "[a]verments in a pleading to which a responsive pleading is required, except those pertaining to amount of...
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