FILED Nov 12 2024, 8:49 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana Ronald E. Davidhizar, Appellant-Petitioner
v.
City of Goshen, Indiana, Appellee-Respondent
November 12, 2024 Court of Appeals Case No. 23A-PL-2921 Appeal from the Elkhart Circuit Court The Honorable Michael A. Christofeno, Judge Trial Court Cause No. 20C01-2205-PL-93
Opinion by Judge Pyle Judge Bailey and Senior Judge Crone concur.
Court of Appeals of Indiana | Opinion 23A-PL-2921 | November 12, 2024 Page 1 of 9 Pyle, Judge.
Statement of the Case
[1] Ronald E. Davidhizar (“Davidhizar”) appeals the trial court’s order denying his
complaint for judicial review of the demolition order entered by the City of
Goshen (“the City”). Davidhizar argues that the trial court erred by
determining that his complaint for judicial review of the demolition order was
untimely filed. Concluding that Davidhizar’s complaint for judicial review was
untimely filed, we affirm the trial court’s judgment.
[2] We affirm.
Issue Whether the trial court erred by determining that Davidhizar’s petition for judicial review was untimely filed.
Facts [3] Davidhizar owns a residential building on East Clinton Street in Goshen,
Indiana (“the Building”). In May 2021, part of the Building caught fire and
was damaged.
[4] In September 2021, a building inspector from the City inspected the Building
and noted violations of the City’s housing code. Thereafter, on November 16,
2021, the City, via the City’s Building Commission, issued an order finding that
the Building was an unsafe building under Indiana’s Unsafe Building Law in
INDIANA CODE § 36-7-9-4 and directing Davidhizar to demolish the Building
Court of Appeals of Indiana | Opinion 23A-PL-2921 | November 12, 2024 Page 2 of 9 (“the demolition order”). The demolition order also provided that the order
would be reviewed by the Goshen Board of Public Works (“the Board”) at its
hearing on December 6, 2021. Additionally, the demolition order informed
Davidhizar that he had the right to appear at the review hearing and to present
evidence and that, if he failed to appear, the hearing would be held in his
absence.
[5] During the Board’s December 6, 2021 hearing, Davidhizar appeared with
counsel. At the conclusion of that hearing, the Board agreed that the Building
was an unsafe building and ordered Davidhizar to secure the Building against
the public or animals. The Board then issued a continuance for an additional
hearing on January 24, 2022. The Board directed Davidhizar to hire a
structural engineer to inspect the Building and to provide the report at the
January 24 hearing.
[6] Neither Davidhizar nor his counsel appeared at the January 24 hearing. At the
conclusion of the January 24 hearing, the Board affirmed the City’s demolition
order and ordered that the Building be demolished by March 31, 2022. The
Board also allowed Davidhizar until February 7, 2022 to respond in writing.
On January 26, 2022, the Board issued a written order and informed
Davidhizar of the February 7 date to respond. The Board’s order also informed
Davidhizar that he was entitled to appeal the Board’s order by filing a
complaint for judicial review in the county circuit or superior court within ten
days of the Board’s actions. Davidhizar did not file a complaint for judicial
review within ten days of the January 24 hearing.
Court of Appeals of Indiana | Opinion 23A-PL-2921 | November 12, 2024 Page 3 of 9 [7] The Board then held compliance hearings on April 18, 2022 and May 2, 2022.
Davidhizar was present at both hearings with his counsel. At the end of the
May hearing, the Board upheld or reaffirmed its January 24, 2022 order to
demolish the Building.
[8] Thereafter, on May 11, 2022, Davidhizar filed, with the trial court, a complaint
for judicial review of the demolition order. The trial court held a judicial
review hearing in November 2022. Subsequently, the trial court issued an order
in which it concluded that Davidhizar’s complaint for judicial review was
untimely filed because he had failed to file it within ten days of the Board taking
action at the January 24, 2022 hearing.1 Davidhizar then filed a motion to
correct error, which the trial court denied.
[9] Davidhizar now appeals.
Decision [10] Davidhizar argues that the trial court erred by determining that his complaint
for judicial review was untimely filed. Davidhizar contends that he was not
required to file his complaint for judicial review within ten days from the date
of the January 24 hearing because the Board had extended him an “invitation”
to respond to its decision to affirm the demolition order by February 7.
1 The trial court also concluded that even if Davidhizar’s complaint for judicial review had been timely filed, his request for judicial review failed on the merits. However, we need not review that part of the trial court’s order because we affirm the trial court’s judgment that Davidhizar failed to timely file his complaint for judicial review.
Court of Appeals of Indiana | Opinion 23A-PL-2921 | November 12, 2024 Page 4 of 9 (Davidhizar’s Br. 20). Instead, Davidhizar asserts that the date for him to file
for judicial review was triggered at the May 2, 2022 compliance hearing when
the Board upheld the demolition order. We disagree.
[11] “‘The law is clear in Indiana 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.’” Van Meter v. Cmty.
Dev. & Redevelopment, 152 N.E.3d 22, 24 (Ind. Ct. App. 2020) (quoting Starzenski
v. City of Elkhart, 659 N.E.2d 1132, 1136 (Ind. Ct. App. 1996), trans. denied, cert.
denied). This appeal involves a demolition order issued by the City under
Indiana’s Unsafe Building Law. See IND. CODE § 36-7-9-1 to -29. In Indiana,
“cities and towns have the authority to regulate the use of property to protect
the health and safety of their residents.” Starzenski, 659 N.E.2d at 1140.
INDIANA CODE 36-7-9-5 provides that an “enforcement authority may issue an
order requiring action relative to any unsafe premises,” including “demolition”
of an “unsafe building[.]” I.C. § 36-7-9-5(a)(6), (7). INDIANA CODE § 36-7-9-
7(a) provides that a hearing authority must hold a hearing regarding certain
orders, including demolition orders, issued by the enforcement authority. “At
the conclusion of any [such] hearing [held by the hearing authority] at which a
continuance is not granted, the hearing authority may make findings and take
action to: (1) affirm the order; (2) rescind the order; or (3) modify the order[.]”
I.C. § 36-7-9-7(d) (emphasis added). Following action taken by the hearing
authority under INDIANA CODE § 36-7-9-7(d), a person may seek judicial review
by “the circuit or superior court in which the unsafe premises are located[.]”
Court of Appeals of Indiana | Opinion 23A-PL-2921 | November 12, 2024 Page 5 of 9 I.C. § 36-7-9-8(a). “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.” I.C.
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FILED Nov 12 2024, 8:49 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana Ronald E. Davidhizar, Appellant-Petitioner
v.
City of Goshen, Indiana, Appellee-Respondent
November 12, 2024 Court of Appeals Case No. 23A-PL-2921 Appeal from the Elkhart Circuit Court The Honorable Michael A. Christofeno, Judge Trial Court Cause No. 20C01-2205-PL-93
Opinion by Judge Pyle Judge Bailey and Senior Judge Crone concur.
Court of Appeals of Indiana | Opinion 23A-PL-2921 | November 12, 2024 Page 1 of 9 Pyle, Judge.
Statement of the Case
[1] Ronald E. Davidhizar (“Davidhizar”) appeals the trial court’s order denying his
complaint for judicial review of the demolition order entered by the City of
Goshen (“the City”). Davidhizar argues that the trial court erred by
determining that his complaint for judicial review of the demolition order was
untimely filed. Concluding that Davidhizar’s complaint for judicial review was
untimely filed, we affirm the trial court’s judgment.
[2] We affirm.
Issue Whether the trial court erred by determining that Davidhizar’s petition for judicial review was untimely filed.
Facts [3] Davidhizar owns a residential building on East Clinton Street in Goshen,
Indiana (“the Building”). In May 2021, part of the Building caught fire and
was damaged.
[4] In September 2021, a building inspector from the City inspected the Building
and noted violations of the City’s housing code. Thereafter, on November 16,
2021, the City, via the City’s Building Commission, issued an order finding that
the Building was an unsafe building under Indiana’s Unsafe Building Law in
INDIANA CODE § 36-7-9-4 and directing Davidhizar to demolish the Building
Court of Appeals of Indiana | Opinion 23A-PL-2921 | November 12, 2024 Page 2 of 9 (“the demolition order”). The demolition order also provided that the order
would be reviewed by the Goshen Board of Public Works (“the Board”) at its
hearing on December 6, 2021. Additionally, the demolition order informed
Davidhizar that he had the right to appear at the review hearing and to present
evidence and that, if he failed to appear, the hearing would be held in his
absence.
[5] During the Board’s December 6, 2021 hearing, Davidhizar appeared with
counsel. At the conclusion of that hearing, the Board agreed that the Building
was an unsafe building and ordered Davidhizar to secure the Building against
the public or animals. The Board then issued a continuance for an additional
hearing on January 24, 2022. The Board directed Davidhizar to hire a
structural engineer to inspect the Building and to provide the report at the
January 24 hearing.
[6] Neither Davidhizar nor his counsel appeared at the January 24 hearing. At the
conclusion of the January 24 hearing, the Board affirmed the City’s demolition
order and ordered that the Building be demolished by March 31, 2022. The
Board also allowed Davidhizar until February 7, 2022 to respond in writing.
On January 26, 2022, the Board issued a written order and informed
Davidhizar of the February 7 date to respond. The Board’s order also informed
Davidhizar that he was entitled to appeal the Board’s order by filing a
complaint for judicial review in the county circuit or superior court within ten
days of the Board’s actions. Davidhizar did not file a complaint for judicial
review within ten days of the January 24 hearing.
Court of Appeals of Indiana | Opinion 23A-PL-2921 | November 12, 2024 Page 3 of 9 [7] The Board then held compliance hearings on April 18, 2022 and May 2, 2022.
Davidhizar was present at both hearings with his counsel. At the end of the
May hearing, the Board upheld or reaffirmed its January 24, 2022 order to
demolish the Building.
[8] Thereafter, on May 11, 2022, Davidhizar filed, with the trial court, a complaint
for judicial review of the demolition order. The trial court held a judicial
review hearing in November 2022. Subsequently, the trial court issued an order
in which it concluded that Davidhizar’s complaint for judicial review was
untimely filed because he had failed to file it within ten days of the Board taking
action at the January 24, 2022 hearing.1 Davidhizar then filed a motion to
correct error, which the trial court denied.
[9] Davidhizar now appeals.
Decision [10] Davidhizar argues that the trial court erred by determining that his complaint
for judicial review was untimely filed. Davidhizar contends that he was not
required to file his complaint for judicial review within ten days from the date
of the January 24 hearing because the Board had extended him an “invitation”
to respond to its decision to affirm the demolition order by February 7.
1 The trial court also concluded that even if Davidhizar’s complaint for judicial review had been timely filed, his request for judicial review failed on the merits. However, we need not review that part of the trial court’s order because we affirm the trial court’s judgment that Davidhizar failed to timely file his complaint for judicial review.
Court of Appeals of Indiana | Opinion 23A-PL-2921 | November 12, 2024 Page 4 of 9 (Davidhizar’s Br. 20). Instead, Davidhizar asserts that the date for him to file
for judicial review was triggered at the May 2, 2022 compliance hearing when
the Board upheld the demolition order. We disagree.
[11] “‘The law is clear in Indiana 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.’” Van Meter v. Cmty.
Dev. & Redevelopment, 152 N.E.3d 22, 24 (Ind. Ct. App. 2020) (quoting Starzenski
v. City of Elkhart, 659 N.E.2d 1132, 1136 (Ind. Ct. App. 1996), trans. denied, cert.
denied). This appeal involves a demolition order issued by the City under
Indiana’s Unsafe Building Law. See IND. CODE § 36-7-9-1 to -29. In Indiana,
“cities and towns have the authority to regulate the use of property to protect
the health and safety of their residents.” Starzenski, 659 N.E.2d at 1140.
INDIANA CODE 36-7-9-5 provides that an “enforcement authority may issue an
order requiring action relative to any unsafe premises,” including “demolition”
of an “unsafe building[.]” I.C. § 36-7-9-5(a)(6), (7). INDIANA CODE § 36-7-9-
7(a) provides that a hearing authority must hold a hearing regarding certain
orders, including demolition orders, issued by the enforcement authority. “At
the conclusion of any [such] hearing [held by the hearing authority] at which a
continuance is not granted, the hearing authority may make findings and take
action to: (1) affirm the order; (2) rescind the order; or (3) modify the order[.]”
I.C. § 36-7-9-7(d) (emphasis added). Following action taken by the hearing
authority under INDIANA CODE § 36-7-9-7(d), a person may seek judicial review
by “the circuit or superior court in which the unsafe premises are located[.]”
Court of Appeals of Indiana | Opinion 23A-PL-2921 | November 12, 2024 Page 5 of 9 I.C. § 36-7-9-8(a). “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.” I.C. § 36-7-9-8(b) (emphasis added). An
appeal for judicial review under INDIANA CODE § 36-7-9-8 “is an action de
novo[,]” and the trial court “may affirm, modify, or reverse the action taken by
the hearing authority.” I.C. § 36-7-9-8(c).
[12] In Van Meter, our Court explained that a property owner was required to file a
complaint for judicial review within ten days from the date that the hearing
authority had taken action by affirming the enforcement authority’s demolition
order during a review hearing. Van Meter, 152 N.E.3d at 25-26. In that case,
the City, as the enforcement authority, had issued a demolition order to the
property owner on August 6, 2019. The City also gave the owner until
September 5, 2019 to “complete corrective measures and avoid demolition.”
Id. at 23. On August 19, 2019, the Board, as the hearing authority, held a
review hearing of the August 6 demolition order. The property owner failed to
appear at this hearing. At the conclusion of the hearing, the Board affirmed the
demolition order and the “compliance deadline” of September 5. Id. The
Board then held a status hearing on September 3, and it “reaffirmed” the
demolition order and the September 5 deadline. Id. The property owner did
not comply with the September 5 deadline, nor did he seek judicial review of
the Board’s August 19 order. The Board also held a compliance hearing on
September 16, during which demolition proposals were presented. During a
Court of Appeals of Indiana | Opinion 23A-PL-2921 | November 12, 2024 Page 6 of 9 regular Board meeting on October 7, the property owner asked the Board to
stop the planned demolition of the property. The Board refused his request and
upheld the demolition order. The following day, the property owner filed a
complaint for judicial review of the demolition order with the trial court. The
trial court determined that the property owner’s complaint for judicial review
was untimely because he had failed to file it within ten days of the August 19
hearing when the Board had taken action and affirmed the demolition order.
Id. at 24.
[13] On appeal, the property owner argued that the date for him to file for judicial
review was triggered at the October 7 hearing when the Board had reaffirmed
the demolition order and had “essentially g[i]ve[n] him a new ten-day clock” to
file his complaint for judicial review. Id. Our Court rejected the property
owner’s arguments. We explained that the Board had held the review hearing,
as required by INDIANA CODE § 36-7-9-7, on August 19 and had taken action
by affirming the demolition order without any continuances. Id. at 25-26. We
further explained that the Board’s subsequent hearings were in furtherance of its
August 19 order and that the Board’s reaffirmance of the demolition order at
the October 7 hearing did not give the property owner a new ten-day clock to
seek judicial review to appeal the demolition order. Id. at 26. Because the
property owner had failed to seek judicial review within ten days of the August
19 hearing, we affirmed the trial court’s determination that the owner’s
complaint for judicial review was untimely. Id. at 26-27.
Court of Appeals of Indiana | Opinion 23A-PL-2921 | November 12, 2024 Page 7 of 9 [14] Here, as in Van Meter, Davidhizar failed to timely file his complaint for judicial
review. The City, acting as the enforcement authority, issued a demolition
order to Davidhizar on November 16, 2021. The Board, acting as the hearing
authority, held a hearing on December 6, 2021. At the conclusion of that
hearing, the Board agreed that the Building was an unsafe building and then
issued a continuance for an additional hearing on January 24, 2022. At the
conclusion of the January 24 hearing, the Board affirmed the City’s demolition
order and ordered that the Building be demolished by March 31, 2022. The
Board also allowed Davidhizar until February 7, 2022 to respond in writing.
Additionally, the Board’s order informed Davidhizar that he was entitled to
appeal the Board’s order by filing a complaint for judicial review in the county
court within ten days. Davidhizar, however, did not file a complaint for
judicial review within ten days of the January 24 hearing. Instead, he waited
until May 11, 2022 to file his complaint for judicial review. As the trial court
properly determined, the hearing contemplated by INDIANA CODE § 36-7-9-7
was held on January 24, 2022. No continuance was taken at this hearing, and
the Board took action by affirming the City’s demolition order. Contrary to
Davidhizar’s assertion, the trial court’s subsequent compliance hearing on May
2, 2022 did not provide him with a new ten-day clock to seek judicial review to
appeal the demolition order. See Van Meter, 152 N.E.3d at 26. Because
Davidhizar failed to seek judicial review within ten days of the January 24
hearing, we affirm the trial court’s determination that Davidhizar’s complaint
for judicial review was untimely filed. See, e.g., Van Meter, 152 N.E.3d at 26-27.
See also Starzenski, 659 N.E.2d at 1137 (explaining that a hearing authority took Court of Appeals of Indiana | Opinion 23A-PL-2921 | November 12, 2024 Page 8 of 9 action on the property owner’s case at the conclusion of the hearing in which it
affirmed the enforcement authority’s order). Accordingly, we affirm the trial
court’s judgment.
[15] Affirmed.
Bailey, J., and Crone, Sr. J., concur.
ATTORNEY FOR APPELLANT John William Davis, Jr. Davis & Roose Goshen, Indiana
ATTORNEY FOR APPELLEE Donald R. Shuler Barkes, Kolbus, Rife & Shuler, LLP Goshen, Indiana
Court of Appeals of Indiana | Opinion 23A-PL-2921 | November 12, 2024 Page 9 of 9