Groff v. City of Butler

794 N.E.2d 528, 2003 Ind. App. LEXIS 1589, 2003 WL 22025868
CourtIndiana Court of Appeals
DecidedAugust 29, 2003
Docket17A03-0303-CV-78
StatusPublished
Cited by8 cases

This text of 794 N.E.2d 528 (Groff v. City of Butler) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Groff v. City of Butler, 794 N.E.2d 528, 2003 Ind. App. LEXIS 1589, 2003 WL 22025868 (Ind. Ct. App. 2003).

Opinions

OPINION

MATHIAS, Judge.

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, 2008;
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.

Facts and Procedural History

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. [531]*531Schweitzer 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. 8.

At the May 28" 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 Cireuit 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. 117. Therefore, the City requested that the trial court issue an injunction against the Groffs from "further and continued violation of the Unsafe Building Law of the State of Indiana, and further prohibit the creation or maintenance of nuisances on their property as they have in the past[.]" Id.

[532]*532At the hearing held on January 15, 2008,1 although they had been previously represented by counsel, the Groffs proceeded pro se. During the hearing, the City moved to have the allegations in the counterclaim deemed admitted because the Groffs had failed to file a response. The trial court granted that motion. The Groffs did not present any evidence at the hearing. On January 31, 2008, the trial court affirmed the Committee's demolition order. Ruling on the City's counterclaim, the trial court entered an injunction against the Groffs prohibiting them from

maintaining substandard housing which violates the Unsafe Building Laws of the State of Indiana and/or the City of Butler and that they inspect all of their properties and bring them into compliance with said laws immediately and that any further violations of the Unsafe Building Laws shall be punishable by contempt of court.

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 $7,449.58. The Groffs now appeal.

I. Notice

The Groffs argue that they did not receive adequate notice of the January 15, 2003 hearing, and therefore, the trial court's January 31, 2008 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. 1283. 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.

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794 N.E.2d 528, 2003 Ind. App. LEXIS 1589, 2003 WL 22025868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/groff-v-city-of-butler-indctapp-2003.