Quaker Properties, Inc. v. Department of Unsafe Buildings

842 N.E.2d 865, 2006 Ind. App. LEXIS 259, 2006 WL 389826
CourtIndiana Court of Appeals
DecidedFebruary 21, 2006
DocketNo. 15A01-0508-CV-347
StatusPublished
Cited by4 cases

This text of 842 N.E.2d 865 (Quaker Properties, Inc. v. Department of Unsafe Buildings) 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
Quaker Properties, Inc. v. Department of Unsafe Buildings, 842 N.E.2d 865, 2006 Ind. App. LEXIS 259, 2006 WL 389826 (Ind. Ct. App. 2006).

Opinion

OPINION

BAKER, Judge.

Appellant-plaintiff Quaker Properties, Inc. (Quaker) appeals the trial court's dismissal of its petition for judicial review against the appellee-defendant Department of Unsafe Buildings of the City of Greendale (the City), as well as the judgment that was awarded to the City for the repairs and modifications it made to Quaker's building. Concluding that Quaker did not file its petition for judicial review in a timely manner, and further finding that the judgment was appropriately entered for the City, we affirm the judgment of the trial court.

FACTS

On November 20, 2001, the City, by its Chief Administrative Officer, issued an or[866]*866der that the Schenley Warehouse building (Schenley building) that was owned by Quaker was in an impaired condition. The City alleged that the roof of the building had collapsed and there was a crack that extended from the top of the building to the bottom. As a result, the defects threatened persons occupying or using nearby property. Quaker was ordered to seal the Schenley building and repair or rehabilitate it in order to bring it into compliance with the standards for building condition or maintenance required for human habitation. Alternatively, the order provided that Quaker was to remove the unsafe building within fourteen days of Quaker's receipt of the order.

This action was scheduled before the Hearing Authority on December 12, 2001. At the hearing, Quaker appeared by its representative, Bob Greer, who agreed that the Schenley building was unsafe. As a result, it was determined that Quaker was to seal the building against intrusion by December 31, 2001, remove the south wall of the building by January 31, 2002, and ultimately remove the building by June 30, 2002.

On August 29, 2003, Quaker filed its complaint for judicial review with regard to the above order. In the interim, the City sought judgment against Quaker for certain work it had performed on the Schenley building. Specifically, on November 26, 2003, the City filed its record of unpaid costs for the work it had performed under 'a separate cause number. Thereafter, on April 18, 2004, the City filed a verified petition for judgment, and an order was issued that same day awarding the City judgment in the amount of $126,410.86. However, on August 16, 2004, the trial court set aside the judgment and consolidated that matter with the action that pertained to the petition for judicial review pursuant to Quaker's request that it do so.

On March 9, 2005, the City filed a motion to dismiss Quaker's petition for judicial review, along with a motion for entry of judgment upon the City's verified petition for judgment. Following a hearing, the trial court granted both of these motions on June 6, 2005. In its order, the trial court determined that Quaker had failed to file the petition for judicial review in a timely fashion1 Additionally, it observed that the City was entitled to judgment for the work that it had performed on the Schenley building because Quaker failed to object to the City's claim for costs in a timely manner. Quaker now appeals.

DISCUSSION AND DECISION

I. Petition for Judicial Review

Quaker first claims that the trial court abused its discretion in dismissing its petition for judicial review. Specifically, Quaker argues that because it eventually rendered the building safe as a result of certain repairs and modifications that Greer made, the petition for judicial review was ripe for review.

In addressing this issue, we first set forth the relevant provisions of Indiana Code section 836-7-9-8, the Statute that pertains to unsafe buildings:

(a) An action taken under section 7(d)2 of this chapter is subject to review by [867]*867the cireuit or superior court of the county in which the unsafe premises are located, on request of:
(1) any person who has a substantial property interest in the unsafe premises; or
(2) any person to whom that order was issued.
(b) A person requesting judicial review under this section must file a verified complaint including the findings of fact and the action taken by the hearing authority. The complaint must be filed within ten (10) days after the date when the action was taken.
(e) An appeal under this section is an action de novo. The court may affirm, modify, or reverse the action taken by the hearing authority.

(Emphasis added).

In considering the above, we observe that it has been held that where a statute sets forth a specific time period for filing an appeal from an administrative decision, one must timely file the appeal in order to invoke the jurisdiction of the court. Read v. City of South Bend, 687 N.E.2d 265, 267 (Ind.Ct.App.1997), trans. denied. To illustrate, in Starzenski v. City of Elkhart, 659 N.E.2d 1132, 1136 (Ind.Ct.App.1996), trans. denied, the Emforcement Authority in Elkhart ordered the Starzenskis to clean up their property after a large amount of trash and debris had accumulated on the premises. Following a hearing on the order, the hearing authority affirmed the enforcement of the order. The Starzenskis failed to comply, and the en-foreement authority rendered another order, advising the Starzenskis that if they failed to clean up the property, the City of Elkhart would do so. Following a hearing on the order on October 29, 1992, the hearing authority again affirmed the order. The Starzenskis failed to comply, and the City began to clean up the property.

On February 8, 1998, the Starzenskis petitioned for-and were awarded-a temporary restraining order. The Starzenskis subsequently sought a preliminary injunetion, arguing that the City of Elkhart had violated their due process rights by entering their property without a warrant and by taking their possessions without just compensation. After a hearing, the trial court denied the Starzenskis's request for the injunction, finding that the City's actions did not violate their constitutional rights. Id. at 1186.

In the appeal to this court, we observed that "the Starzenskis filed no appeal from the order of the Hearing Authority. Instead, they seek to cireumvent the statutory requirements governing appeals from the Hearing Authority by seeking an injunction against the City in a collateral proceeding brought in the Elkhart Superi- or Court." Id. at 1186-37. We noted that the Hearing Authority took action on Octo[868]*868ber 29, 1992, when it affirmed the Enforcement Authority's order. As a result, we held that "[the Starzenskis failed to appeal from that action within the requisite time period." Id. at 11837. Hence, we concluded that "the Starzenskis have waived their challenge to the Hearing Authority's decision and the Enforcement Authority's order, and the opportunity to have the court conduct a de novo review of the evidence under I.C. 36-7-9-8." Id. Finally, we observed that the time limits set forth in Indiana Code section 36-7-9-1 et seq., satisfied due process requirements.

In this case, the record shows that Quaker failed to timely file its verified petition for judicial review within the requisite ten days of the hearing and findings.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
842 N.E.2d 865, 2006 Ind. App. LEXIS 259, 2006 WL 389826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quaker-properties-inc-v-department-of-unsafe-buildings-indctapp-2006.