MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Apr 25 2018, 8:55 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE Jenny R. Buchheit Eric C. Welch Derek R. Molter Craig E. Beougher Ice Miller LLP Welch & Company, LLC Indianapolis, Indiana Muncie, Indiana Megan B. Quirk Quirk & Hunter, P.C. Muncie, Indiana
IN THE COURT OF APPEALS OF INDIANA
City of Muncie Unsafe Building April 25, 2018 Hearing Authority, James Lee, Court of Appeals Case No. Doug Marshall, Deborah Malitz, 18A02-1707-PL-1729 Aaron Wood, and Brad King, in Appeal from the Delaware Circuit their official capacities, Court. The Honorable Thomas A. Cannon, Appellants-Defendants, Jr., Judge. Trial Court Cause No. v. 18C05-1606-PL-70
Popatlal Patel, Appellee-Plaintiff.
Shepard, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 18A02-1707-PL-1729 | April 25, 2018 Page 1 of 7 [1] This is the latest chapter in a long-running dispute between the City of Muncie
Unsafe Building Hearing Authority and Popatlal Patel, who owned a building
that the Authority deemed unsafe and ordered to be demolished. Patel
demolished the building, but the Authority concluded Patel failed to fully
complete the work and issued a second demolition order. Patel sought judicial
review, and the trial court entered judgment in his favor. The Authority
appeals, and we reverse and remand with instructions.
Facts and Procedural History [2] Patel owned a commercial building in Muncie. He operated it as a motel, but
later closed it, and the building stood vacant for years. In April 2014, the
Muncie Building Commissioner issued a report stating the building was unfit
for human habitation due to numerous problems ranging from holes in the roof
to flooring issues. The commissioner ordered Patel to demolish it. On May 8,
2014, the Authority held a hearing and agreed with the commissioner that Patel
was obligated to remove the building.
[3] What followed was a multi-year process with repeated hearings before the
Authority. Patel initially agreed to demolish a portion of the building but
wanted to rehabilitate the rest. He later conceded the entire building was
beyond rehabilitation and provided a $22,000 performance bond to cover the
remainder of the demolition project. During this process, Patel and the
Authority disagreed over whether Patel was performing the work in a thorough
manner. For example, during a December 10, 2015 hearing, Patel claimed his
Court of Appeals of Indiana | Memorandum Decision 18A02-1707-PL-1729 | April 25, 2018 Page 2 of 7 contractor had finished the demolition work. By contrast, the building
commissioner asserted there was still asphalt and a sign base on the property,
and grass seed had not been adequately sown.
[4] During demolition, a contractor discovered abandoned petroleum storage tanks
buried under a concrete slab, dating from when a gas station operated on the
property decades ago. The slab was on a different part of the property than the
motel building. Patel represented to the Authority that he had contacted an
IDEM employee who informed him there was no need to remove the tanks if
the slab was intact and kept in place.
[5] Beginning in December 2015, Patel told the Authority the demolition project
was complete and asked that his $22,000 bond be released. The Authority
continued hearings on the matter several times. During the hearings, individual
members of the Authority stated it might be better for the property if the tanks
were removed, but Patel disclaimed responsibility for them and claimed they
were outside the bounds of the Authority’s demolition order.
[6] On March 22, 2016, the Building Commissioner issued a new inspection report,
stating that the property was not yet in compliance because there were still
“footer[s] and foundations” that needed to be removed. Appellants’ App. Vol.
II, p. 218. The Authority refused to release the bond. In addition, on June 9,
2016, the Authority issued a second demolition order, instructing Patel to
remove the footers and complete the demolition.
Court of Appeals of Indiana | Memorandum Decision 18A02-1707-PL-1729 | April 25, 2018 Page 3 of 7 [7] On June 20, 2016, Patel filed a verified complaint against the Authority and its
individual members, asking the trial court to vacate the Authority’s June 9,
2016 order and to order the Authority to release the bond. The Authority filed
a motion for summary judgment and dismissal of complaint. The court denied
the motion for summary judgment after a hearing.
[8] Next, the court held a bench trial and issued findings of fact, conclusions
thereon, and judgment in favor of Patel. The court ordered the Authority to
release the bond and vacated the June 9, 2016 demolition order. The Authority
appealed. This Court has stayed the trial court’s judgment pending resolution
of this appeal.
[9] The Authority raises several issues. On the merits of more than one of these,
the Authority is entitled to prevail. In the interest of expedition, we describe in
detail just one of those grounds for reversal.
Discussion and Decision [10] The Authority claims the trial court erred in entering judgment in favor of Patel
because the court overlooked evidence that the motel demolition work was
incomplete, which was the basis for the Authority’s second demolition order.
[11] The accepted standard of review for trial court judgments such as the one before
us is as follows:
A trial court is required to review a demolition order under a de novo standard of review. Under a de novo review, the trial court may, to a limited extent, weigh the evidence supporting the enforcement authority’s findings of fact. The court may negate Court of Appeals of Indiana | Memorandum Decision 18A02-1707-PL-1729 | April 25, 2018 Page 4 of 7 the finding only if, based upon the evidence as a whole, the finding of fact was arbitrary, capricious, an abuse of discretion, unsupported by the evidence, or in excess of statutory authority. The trial court may not substitute its judgment for that of the [enforcement authority]; rather, the facts should be determined only [ ] one time. When we review the trial court’s decision, we are required to determine whether its decision was arbitrary, capricious, an abuse of discretion, unsupported by the evidence, or in excess of statutory authority.
Groff v. City of Butler, 794 N.E.2d 528, 533-34 (Ind. Ct. App. 2003) (quotations
and citations omitted).
[12] An enforcement authority is authorized to declare a building unsafe and to
require the property owner to take corrective actions, including demolition.
Ind. Code § 36-7-9-5 (2015). “The ordered action must be reasonably related to
the condition of the unsafe premises and the nature and use of nearby
properties.” Id.
[13] The Authority claimed at trial that the second demolition order was valid
because Patel failed to complete demolition of the motel building. The
Authority argues the court overlooked substantial, specific evidence on that
topic. We agree.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Apr 25 2018, 8:55 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE Jenny R. Buchheit Eric C. Welch Derek R. Molter Craig E. Beougher Ice Miller LLP Welch & Company, LLC Indianapolis, Indiana Muncie, Indiana Megan B. Quirk Quirk & Hunter, P.C. Muncie, Indiana
IN THE COURT OF APPEALS OF INDIANA
City of Muncie Unsafe Building April 25, 2018 Hearing Authority, James Lee, Court of Appeals Case No. Doug Marshall, Deborah Malitz, 18A02-1707-PL-1729 Aaron Wood, and Brad King, in Appeal from the Delaware Circuit their official capacities, Court. The Honorable Thomas A. Cannon, Appellants-Defendants, Jr., Judge. Trial Court Cause No. v. 18C05-1606-PL-70
Popatlal Patel, Appellee-Plaintiff.
Shepard, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 18A02-1707-PL-1729 | April 25, 2018 Page 1 of 7 [1] This is the latest chapter in a long-running dispute between the City of Muncie
Unsafe Building Hearing Authority and Popatlal Patel, who owned a building
that the Authority deemed unsafe and ordered to be demolished. Patel
demolished the building, but the Authority concluded Patel failed to fully
complete the work and issued a second demolition order. Patel sought judicial
review, and the trial court entered judgment in his favor. The Authority
appeals, and we reverse and remand with instructions.
Facts and Procedural History [2] Patel owned a commercial building in Muncie. He operated it as a motel, but
later closed it, and the building stood vacant for years. In April 2014, the
Muncie Building Commissioner issued a report stating the building was unfit
for human habitation due to numerous problems ranging from holes in the roof
to flooring issues. The commissioner ordered Patel to demolish it. On May 8,
2014, the Authority held a hearing and agreed with the commissioner that Patel
was obligated to remove the building.
[3] What followed was a multi-year process with repeated hearings before the
Authority. Patel initially agreed to demolish a portion of the building but
wanted to rehabilitate the rest. He later conceded the entire building was
beyond rehabilitation and provided a $22,000 performance bond to cover the
remainder of the demolition project. During this process, Patel and the
Authority disagreed over whether Patel was performing the work in a thorough
manner. For example, during a December 10, 2015 hearing, Patel claimed his
Court of Appeals of Indiana | Memorandum Decision 18A02-1707-PL-1729 | April 25, 2018 Page 2 of 7 contractor had finished the demolition work. By contrast, the building
commissioner asserted there was still asphalt and a sign base on the property,
and grass seed had not been adequately sown.
[4] During demolition, a contractor discovered abandoned petroleum storage tanks
buried under a concrete slab, dating from when a gas station operated on the
property decades ago. The slab was on a different part of the property than the
motel building. Patel represented to the Authority that he had contacted an
IDEM employee who informed him there was no need to remove the tanks if
the slab was intact and kept in place.
[5] Beginning in December 2015, Patel told the Authority the demolition project
was complete and asked that his $22,000 bond be released. The Authority
continued hearings on the matter several times. During the hearings, individual
members of the Authority stated it might be better for the property if the tanks
were removed, but Patel disclaimed responsibility for them and claimed they
were outside the bounds of the Authority’s demolition order.
[6] On March 22, 2016, the Building Commissioner issued a new inspection report,
stating that the property was not yet in compliance because there were still
“footer[s] and foundations” that needed to be removed. Appellants’ App. Vol.
II, p. 218. The Authority refused to release the bond. In addition, on June 9,
2016, the Authority issued a second demolition order, instructing Patel to
remove the footers and complete the demolition.
Court of Appeals of Indiana | Memorandum Decision 18A02-1707-PL-1729 | April 25, 2018 Page 3 of 7 [7] On June 20, 2016, Patel filed a verified complaint against the Authority and its
individual members, asking the trial court to vacate the Authority’s June 9,
2016 order and to order the Authority to release the bond. The Authority filed
a motion for summary judgment and dismissal of complaint. The court denied
the motion for summary judgment after a hearing.
[8] Next, the court held a bench trial and issued findings of fact, conclusions
thereon, and judgment in favor of Patel. The court ordered the Authority to
release the bond and vacated the June 9, 2016 demolition order. The Authority
appealed. This Court has stayed the trial court’s judgment pending resolution
of this appeal.
[9] The Authority raises several issues. On the merits of more than one of these,
the Authority is entitled to prevail. In the interest of expedition, we describe in
detail just one of those grounds for reversal.
Discussion and Decision [10] The Authority claims the trial court erred in entering judgment in favor of Patel
because the court overlooked evidence that the motel demolition work was
incomplete, which was the basis for the Authority’s second demolition order.
[11] The accepted standard of review for trial court judgments such as the one before
us is as follows:
A trial court is required to review a demolition order under a de novo standard of review. Under a de novo review, the trial court may, to a limited extent, weigh the evidence supporting the enforcement authority’s findings of fact. The court may negate Court of Appeals of Indiana | Memorandum Decision 18A02-1707-PL-1729 | April 25, 2018 Page 4 of 7 the finding only if, based upon the evidence as a whole, the finding of fact was arbitrary, capricious, an abuse of discretion, unsupported by the evidence, or in excess of statutory authority. The trial court may not substitute its judgment for that of the [enforcement authority]; rather, the facts should be determined only [ ] one time. When we review the trial court’s decision, we are required to determine whether its decision was arbitrary, capricious, an abuse of discretion, unsupported by the evidence, or in excess of statutory authority.
Groff v. City of Butler, 794 N.E.2d 528, 533-34 (Ind. Ct. App. 2003) (quotations
and citations omitted).
[12] An enforcement authority is authorized to declare a building unsafe and to
require the property owner to take corrective actions, including demolition.
Ind. Code § 36-7-9-5 (2015). “The ordered action must be reasonably related to
the condition of the unsafe premises and the nature and use of nearby
properties.” Id.
[13] The Authority claimed at trial that the second demolition order was valid
because Patel failed to complete demolition of the motel building. The
Authority argues the court overlooked substantial, specific evidence on that
topic. We agree.
[14] The second demolition order required Patel to remove footings and complete
the demolition. At trial, Brandon Garrett, an inspector employed by the
Muncie Building Commissioner, explained that a slab of concrete that
previously supported a bathroom should have been removed. In addition, a
concrete platform for a road sign was still present, cinderblocks from the motel’s
Court of Appeals of Indiana | Memorandum Decision 18A02-1707-PL-1729 | April 25, 2018 Page 5 of 7 foundations were still there, a pipe was sticking out of the ground, and there
were holes in ground that should have been filled in. The Building
Commissioner had raised some of the same issues during a December 10, 2015
Authority hearing. Patel did not dispute that this work was unfinished.
[15] Based on this evidence, the Authority’s second demolition order and decision
not to release the performance bond were supported by evidence and were not
arbitrary and capricious. On this issue, the trial court’s decision was an abuse
of discretion because it substituted its judgment for that of the Authority. See
Brown v. Anderson Bd. of Pub. Safety, 777 N.E.2d 1106 (Ind. Ct. App. 2002)
(affirming judgment for city in demolition case; city presented testimony from 1 inspector that property owners failed to fix unsafe structure), trans. denied.
Conclusion [16] For the reasons stated above, we reverse and remand with instructions to enter
judgment in favor of the Authority. We express no opinion as to whether Patel
will still be entitled to release of the bond if he satisfactorily completes the
demolition work related to the motel building.
1 In the trial court and on appeal, both parties have joined on whether the Authority had actually ordered removal of underground tanks, or not, and on whether IDEM had exclusive authority as respects the tanks. It does appear that the Commissioner’s order, affirmed by the Authority, required removal, or a letter from IDEM indicating no action was needed. Other than citation to IDEM’s general rule-making power, the parties have not offered sufficient legal authorities to support an adjudication on this question. If the roles of the Authority and IDEM are as straightforward as Patel suggests, we recommend that Patel tender some indication to that effect from IDEM on remand, and the issue should be at rest.
Court of Appeals of Indiana | Memorandum Decision 18A02-1707-PL-1729 | April 25, 2018 Page 6 of 7 [17] Reversed and remanded with instructions.
Najam, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A02-1707-PL-1729 | April 25, 2018 Page 7 of 7