VanHawk v. Town of Culver

• Decision Date: 26 November 2019
• Docket Number: Court of Appeals Case No. 19A-CC-408
• Parties: Scotty VANHAWK and The 27 Group, Inc., Appellants-Defendants, v. TOWN OF CULVER, Indiana and Culver Building Commissioner, Appellees-Plaintiffs
• Court: Indiana Appellate Court

137 N.E.3d 258

Scotty VANHAWK and The 27 Group, Inc., Appellants-Defendants,

v.TOWN OF CULVER, Indiana and Culver Building Commissioner, Appellees-Plaintiffs,

Court of Appeals Case No. 19A-CC-408

Court of Appeals of Indiana.

Filed November 26, 2019

Attorneys for Appellants: A. Richard M. Blaiklock, Ryan J. Vershay, Derek G. Raymond, Lewis Wagner, LLP, Indianapolis, Indiana

Attorneys for Appellees: Janette E. Surrisi, James N. Clevenger, Wyland, Humphrey, Clevenger & Surrisi, LLP, Plymouth, Indiana

Robb, Judge.

Case Summary and Issues

[1] Following an inspection, the Town of Culver's ("Culver") Building Commissioner sought to designate a building located at 415 Lakeshore Drive, Culver, Indiana (the "Property"), an unsafe building pursuant to Culver's Unsafe Building Ordinance ("UBO"). The 27 Group, Inc., a dissolved corporation, owned the Property. Scotty VanHawk was the corporation's officer and Katie Delacruz was the corporation's registered agent. No action was taken to repair the Property. The Marshall County Unsafe Building Committee convened and determined the Property was an unsafe building and ordered it to be demolished. Three weeks later, Culver filed a Complaint to Public Nuisance and Unsafe Building and Request for Preliminary Relief, as well as an Application for an Injunction, with the trial court. Following a hearing on Culver's complaint and application for injunction, the trial court issued an order determining the Property was a public nuisance and an unsafe building and ordering it to be demolished. The 27 Group, Inc. appeals and raises numerous issues which we consolidate and restate as: (1) whether the trial court's demolition order was clearly erroneous; and (2) whether Culver should be awarded appellate attorney fees. We conclude the trial court's demolition order was not clearly erroneous under a common law public nuisance theory and decline to award Culver appellate damages. Accordingly, we affirm.

Facts and Procedural History¹

[2] After Culver received a report that there was a "broken door wide open" on the Property, it notified Chuck Dewitt, the town's Building Commissioner.² Transcript, Volume II at 10. On June 27, 2018, Dewitt inspected the Property "to make sure that no one was there ... and no one was injured at that time." Id. Dewitt took numerous photos of the condition of the Property and then contacted The 27 Group,³ who subsequently boarded up the door. Culver had previously adopted Ordinance 2015.007, which included Indiana Code sections 36-7-9-1 through -28, which govern unsafe buildings. Pursuant to this authority, Dewitt took steps to designate the Property an unsafe building. On July 24, 2018, the Marshall County Unsafe Building Committee (hereafter "Hearing Authority"), of which Dewitt is a member, convened to determine the status of the Property. The Hearing Authority determined that The 27 Group, Inc. owned the Property, with Scotty VanHawk being an officer and Katie Delacruz the resident agent of the corporation. However, The 27 Group, Inc. had been administratively dissolved prior to the Hearing Authority's meeting.⁴

[3] The Hearing Authority determined that the Property was unsafe and needed to be demolished.⁵ At some point, notice was sent to The 27 Group, Inc. to repair the Property; however, no action was taken. On August 15, 2018, following the Hearing Authority's determination, Culver filed in the trial court its Complaint to Public Nuisance and Unsafe Building and Request for Preliminary Relief against The 27 Group, Inc. Culver alleged that the Property was unsafe and a public nuisance:

6. [Culver] and the [Hearing Authority] met on July 24, 2018 and made a determination under Indiana Code 36-7-9-5, that the property at 415 Lakeshore Drive, Culver[,] Indiana 46511, is an unsafe building and a public nuisance.

7. The Subject Property is unsafe for the following reasons:

a. The structure on the Subject Property is unoccupied and has been unoccupied for years. It has broken windows, unlocked doors, holes at various locations, all of which allow children and pests to enter the structure. Ceiling tiles have fallen and are hanging.

b. Constitutes a fire hazard.

c. Hazardous to public health in that the interior is full of mold. An odor emits from the structure.

d. Unfit for human habitation with mold, excessive trash and no utilities.

e. A public nuisance located in the middle of a residential area.

8. [Culver] has sent certified letters to [The 27 Group, Inc.] that the Subject Property constitutes an Unsafe Building.

9. [The 27 Group, Inc.] ha[s] not remedied the conditions of the Subject Property.

10. The condition of the Subject Property continues to deteriorate and as such is a public nuisance and a hazard to the public, unsafe building and/or unsafe premise. [The 27 Group, Inc.] has failed to: repair, rehabilitate, demolish, or remove the portions of the Subject Property so as to bring the property into compliance with Town and State rules and regulations and to eliminate the nuisance thereon.

11. The Subject Property has a negative effect on the property values and the quality of life in the surrounding area.

12. Marshall County Ordinance 2015-12, Indiana Code 36-7-9, and Culver Town Ordinance 2015-17 provide the authority to the Court to enter a continuous enforcement order so as to require the Subject Property be remediated at owner's expense.

13. [Culver] and, in particular, Town citizens and neighbors in [Culver], will continue to suffer immediate and irreparable harm unless the Court issues an Order to allow [Culver] to demolish the [S]ubject [P]roperty and order [The 27 Group, Inc.] to pay the cost incurred by [Culver] for said demolition.

Appendix to Appellants' Brief, Volume II at 12-13. Culver requested that the trial court order The 27 Group, Inc. to repair the Property or issue an order authorizing Culver to demolish it, and order The 27 Group, Inc. to pay a civil penalty and reasonable attorney fees. The same day, Culver also filed an Application for Injunction, in which it requested that the trial court hold a hearing and issue an injunction ordering the Corporation to repair the Property. In its motion, Culver asserted that the Property was determined to be unsafe by the Hearing Authority pursuant to Indiana Code section 36-7-9-5. Service of the complaint and summons was made on the three defendants by publication and Mr. VanHawk was also personally served.

[4] On December 18, 2018, the trial court held a hearing on Culver's Motion for a Preliminary Injunction. Mr. VanHawk appeared and notified the trial court that he suffers from a hearing disability and was unable to hear the proceedings. The trial court continued the hearing to allow Mr. VanHawk time to obtain counsel and for the court to arrange real time transcription service. The trial court asked Mr. VanHawk if he understood that the case involved the condition of the 415 Lakeshore Drive property to which Mr. VanHawk responded, "I do now." Tr., Vol. I at 5.

[5] One month later, the trial court held the continued hearing and provided real time transcription for Mr. VanHawk. At the outset of the hearing, Mr. VanHawk informed the trial court that he had not hired an attorney. Instead, he explained that he had been unaware of the subject of the previous hearing. He stated,

When you gave the information to me and I see what it's about, I have no connection. I ... would like a motion to dismiss, there is no reason to tie me to this entire ordeal.... I've never owned property in Culver, I don't own property in Culver, yet I've been drug into this, numerous times.

Tr., Vol. II at 4-5. The trial court responded, "If you feel you have no connection to this case[,] you are not required to stay here today, you may leave if that's your preference." Id. at 5. After realizing the case would not be dismissed, Mr. VanHawk indicated he "absolutely [did] need time [to obtain] legal representation." Id. at 6. The trial court denied Mr. VanHawk's request for additional delay to obtain representation, explaining that it "gave [Mr. VanHawk] time to get representation at the last hearing and that has not happened[.]" Id. at 8. The trial court then stated, "[Counsel for Culver], you may go ahead, Mr. VanHawk is free to stay if he wishes or leave if he wishes." Id. The record reveals that Mr. VanHawk then exited the courtroom.⁶

[6] Culver called its first witness and the hearing proceeded without Mr. VanHawk. Culver offered sixty-five photos that Dewitt took during his inspection to demonstrate the condition of the Property and 2009 through 2017 tax assessments and payments on the Property, all of which were admitted.⁷ However, the Hearing Authority's determination was not offered or entered into evidence at the hearing. Dewitt testified that the process "involve[d] going before the [Hearing Authority], presenting the case there and getting a reading and ruling back from them." Id. at 11. He further testified that the Hearing Authority met on July 24, 2018, and determined the Property was "definitely unsafe and we needed to proceed with tearing the building down." Id. Specifically, he stated that the Hearing Authority determined it was unsafe "because of the deteriorated condition of the building ... the roof coming apart falling in. The outside coming apart, it's open to animals ... cats, raccoons, ... there are bats and that sort of thing that are in and around there all the time." Id. at 12. He also stated the building was a fire hazard and filled with mold.

[7] When asked what Culver would like to happen, Jonathan Leist, Culver's Town Manager, testified: "[W]e'd like to see the findings of the [Hearing Authority] upheld, and we've asked for demolition ... on the property. Give the property owner an opportunity to demolish it, and if he won't then we would move in and do it ourselves." Id. at 49. At the conclusion of the hearing, the trial court determined that the Property was a public nuisance and an unsafe building, granted...