MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Nov 23 2016, 8:42 am Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES Craig Persinger Megan B. Quirk Marion, Indiana Muncie, Indiana
IN THE COURT OF APPEALS OF INDIANA
Rosina Keller, November 23, 2016
Appellant-Plaintiff, Court of Appeals Case No. 18A02-1601-MI-188 v. Appeal from the Delaware Circuit Court. The Honorable Marianne L. Gretchen Cheesman, as Vorhees, Judge. Administrator of the City of Cause No. 18C01-1503-MI-11 Muncie Unsafe Building Hearing Authority, and the City of Muncie, Appellees-Defendants.
Friedlander, Senior Judge
[1] Rosina Keller appeals the trial court’s grant of summary judgment in favor of
Gretchen Cheesman, in her capacity as Administrator of the City of Muncie’s
Unsafe Building Hearing Authority, and the City of Muncie. We affirm.
Court of Appeals of Indiana | Memorandum Decision 18A02-1601-MI-188 | November 23, 2016 Page 1 of 7 [2] James Conaster owned property in Muncie, Indiana, that contained a house
and an outbuilding. Rodney Conaster (relationship to James Conaster
unknown) complained to the Delaware County Health Department about the
conditions of those structures. Appellant’s App. p. 33. On August 25, 2014, an
inspector for the Department visited the property.
[3] On August 26, 2014, the Department issued an order deeming the house to be
“unfit for human habitation” due to disrepair and unspecified unsanitary
conditions. Id. at 34. Conaster was ordered to fix the problems or vacate the
buildings within five days. It appears from the record that Conaster was elderly
and infirm, and he was removed from the property at some point during this
period.
[4] Also on August 26, 2014, the Building Commissioner for the City of Muncie
issued an initial demolition order for the house and outbuilding, deeming them
to be dangerous structures. The order stated that the house’s roof was in
disrepair and the ceiling was falling in. Furthermore, the house’s wiring was in
disrepair.
[5] Meanwhile, Conaster was delinquent on property taxes. On October 15, 2014,
Keller purchased the property at a tax sale. The Delaware County Auditor
issued a Tax Sale Certificate to Keller. According to the Certificate, Keller
would be “entitled to a deed for the tract of land so purchased as above
described at the expiration of the redemption period (Thursday, October 15,
Court of Appeals of Indiana | Memorandum Decision 18A02-1601-MI-188 | November 23, 2016 Page 2 of 7 2015)” if the prior owner, Conaster, did not pay the back taxes during that
period. Id. at 7.
[6] On October 30, 2014, the City of Muncie issued a formal demolition order to
Conaster. In the order, the City directed Conaster to demolish the house and
outbuilding within forty-five days. The City further informed Conaster that the
Unsafe Building Hearing Authority (the Authority) would hold a hearing on the
demolition order on December 11, 2014. The City sent a copy of the letter to
Keller.
[7] The Authority held a hearing as scheduled on December 11, 2014. Conaster
did not attend, but Keller attended and was recognized by the Authority as the
“tax sale buyer” of the property. Id. at 45. Keller asserted that she wanted to
rehabilitate the house but conceded she would not have the right to possess the
property for thirteen months.
[8] After the hearing, the Authority issued a “Record of Hearing.” Id. In the
Record, the Authority both “affirmed” and “continued” the October 30, 2014
demolition order, granting Keller “additional time to comply with the order.”
Id. The Record instructed Keller to submit to the Authority within sixty days a
schedule to repair the house and proof that she could afford $25,000 worth of
repairs on the house. The Authority also suggested that Keller take steps to
gain an immediate right of access to the property to make repairs. The
Authority scheduled a follow-up hearing for February 12, 2015.
Court of Appeals of Indiana | Memorandum Decision 18A02-1601-MI-188 | November 23, 2016 Page 3 of 7 [9] At the February 12, 2015 hearing, Conaster did not attend, but Keller was
present. She submitted a schedule to repair the property and a proposed
budget, but she did not provide proof that she could afford to pay for $25,000
worth of repairs. At the end of the hearing, the Authority issued another
“Record of Hearing” in which the Authority affirmed the demolition order and
the proposed timetable for destruction of the house and outbuilding. Id. The
Authority declined to give Keller any additional time. The Record further
indicated she was told “she could appeal [the] order within 10 calendar days.”
Id.
[10] On February 23, 2015, Keller filed a verified civil complaint against Gretchen
Cheesman in her capacity as Administrator of the Authority, the City of
Muncie, and James Conaster, asking the trial court to reverse the demolition
order. Administrator Cheesman and the City of Muncie filed an answer
generally denying Keller’s allegations.
[11] Next, Administrator Cheesman and the City of Muncie filed a Motion for
Summary Judgment and Dismissal of Complaint. Keller did not file a response
to Cheesman and the City’s motion or designate any evidence in opposition to
the motion. The court held oral argument, at which all parties other than
Conaster appeared. After the hearing, the court granted the motion and
dismissed Keller’s complaint in its entirety.
[12] After the court granted the summary judgment motion, the City began to
demolish the house and outbuilding using its own contractor. Keller filed a
Court of Appeals of Indiana | Memorandum Decision 18A02-1601-MI-188 | November 23, 2016 Page 4 of 7 motion to stay the demolition proceedings, and the court granted the motion.
Next, Keller filed a motion to correct error, which the court denied. The City
filed a motion to resume demolition, alleging that the property had been left in
a dangerous state. The court granted the motion. This appeal followed.
[13] Keller claims the trial court should not have granted summary judgment to
Cheesman and the City. The party appealing from a summary judgment
decision has the burden of persuading this court that the grant or denial of
summary judgment was erroneous. Doe v. Adams, 53 N.E.3d 483 (Ind. Ct. App.
2016), trans. denied.
[14] We review summary judgment de novo, applying the same standard as the trial
court. Hughley v. State, 15 N.E.3d 1000 (Ind. 2014). A party is entitled to
summary judgment if the designated evidence shows that there is no genuine
issue as to any material fact and the party is entitled to judgment as a matter of
law. Ind. Trial Rule 56(C). The movant bears the initial burden of
demonstrating the absence of any genuine issue of material fact. Hughley, 15
N.E.3d 1000. If the movant successfully carries that burden, then the
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Nov 23 2016, 8:42 am Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES Craig Persinger Megan B. Quirk Marion, Indiana Muncie, Indiana
IN THE COURT OF APPEALS OF INDIANA
Rosina Keller, November 23, 2016
Appellant-Plaintiff, Court of Appeals Case No. 18A02-1601-MI-188 v. Appeal from the Delaware Circuit Court. The Honorable Marianne L. Gretchen Cheesman, as Vorhees, Judge. Administrator of the City of Cause No. 18C01-1503-MI-11 Muncie Unsafe Building Hearing Authority, and the City of Muncie, Appellees-Defendants.
Friedlander, Senior Judge
[1] Rosina Keller appeals the trial court’s grant of summary judgment in favor of
Gretchen Cheesman, in her capacity as Administrator of the City of Muncie’s
Unsafe Building Hearing Authority, and the City of Muncie. We affirm.
Court of Appeals of Indiana | Memorandum Decision 18A02-1601-MI-188 | November 23, 2016 Page 1 of 7 [2] James Conaster owned property in Muncie, Indiana, that contained a house
and an outbuilding. Rodney Conaster (relationship to James Conaster
unknown) complained to the Delaware County Health Department about the
conditions of those structures. Appellant’s App. p. 33. On August 25, 2014, an
inspector for the Department visited the property.
[3] On August 26, 2014, the Department issued an order deeming the house to be
“unfit for human habitation” due to disrepair and unspecified unsanitary
conditions. Id. at 34. Conaster was ordered to fix the problems or vacate the
buildings within five days. It appears from the record that Conaster was elderly
and infirm, and he was removed from the property at some point during this
period.
[4] Also on August 26, 2014, the Building Commissioner for the City of Muncie
issued an initial demolition order for the house and outbuilding, deeming them
to be dangerous structures. The order stated that the house’s roof was in
disrepair and the ceiling was falling in. Furthermore, the house’s wiring was in
disrepair.
[5] Meanwhile, Conaster was delinquent on property taxes. On October 15, 2014,
Keller purchased the property at a tax sale. The Delaware County Auditor
issued a Tax Sale Certificate to Keller. According to the Certificate, Keller
would be “entitled to a deed for the tract of land so purchased as above
described at the expiration of the redemption period (Thursday, October 15,
Court of Appeals of Indiana | Memorandum Decision 18A02-1601-MI-188 | November 23, 2016 Page 2 of 7 2015)” if the prior owner, Conaster, did not pay the back taxes during that
period. Id. at 7.
[6] On October 30, 2014, the City of Muncie issued a formal demolition order to
Conaster. In the order, the City directed Conaster to demolish the house and
outbuilding within forty-five days. The City further informed Conaster that the
Unsafe Building Hearing Authority (the Authority) would hold a hearing on the
demolition order on December 11, 2014. The City sent a copy of the letter to
Keller.
[7] The Authority held a hearing as scheduled on December 11, 2014. Conaster
did not attend, but Keller attended and was recognized by the Authority as the
“tax sale buyer” of the property. Id. at 45. Keller asserted that she wanted to
rehabilitate the house but conceded she would not have the right to possess the
property for thirteen months.
[8] After the hearing, the Authority issued a “Record of Hearing.” Id. In the
Record, the Authority both “affirmed” and “continued” the October 30, 2014
demolition order, granting Keller “additional time to comply with the order.”
Id. The Record instructed Keller to submit to the Authority within sixty days a
schedule to repair the house and proof that she could afford $25,000 worth of
repairs on the house. The Authority also suggested that Keller take steps to
gain an immediate right of access to the property to make repairs. The
Authority scheduled a follow-up hearing for February 12, 2015.
Court of Appeals of Indiana | Memorandum Decision 18A02-1601-MI-188 | November 23, 2016 Page 3 of 7 [9] At the February 12, 2015 hearing, Conaster did not attend, but Keller was
present. She submitted a schedule to repair the property and a proposed
budget, but she did not provide proof that she could afford to pay for $25,000
worth of repairs. At the end of the hearing, the Authority issued another
“Record of Hearing” in which the Authority affirmed the demolition order and
the proposed timetable for destruction of the house and outbuilding. Id. The
Authority declined to give Keller any additional time. The Record further
indicated she was told “she could appeal [the] order within 10 calendar days.”
Id.
[10] On February 23, 2015, Keller filed a verified civil complaint against Gretchen
Cheesman in her capacity as Administrator of the Authority, the City of
Muncie, and James Conaster, asking the trial court to reverse the demolition
order. Administrator Cheesman and the City of Muncie filed an answer
generally denying Keller’s allegations.
[11] Next, Administrator Cheesman and the City of Muncie filed a Motion for
Summary Judgment and Dismissal of Complaint. Keller did not file a response
to Cheesman and the City’s motion or designate any evidence in opposition to
the motion. The court held oral argument, at which all parties other than
Conaster appeared. After the hearing, the court granted the motion and
dismissed Keller’s complaint in its entirety.
[12] After the court granted the summary judgment motion, the City began to
demolish the house and outbuilding using its own contractor. Keller filed a
Court of Appeals of Indiana | Memorandum Decision 18A02-1601-MI-188 | November 23, 2016 Page 4 of 7 motion to stay the demolition proceedings, and the court granted the motion.
Next, Keller filed a motion to correct error, which the court denied. The City
filed a motion to resume demolition, alleging that the property had been left in
a dangerous state. The court granted the motion. This appeal followed.
[13] Keller claims the trial court should not have granted summary judgment to
Cheesman and the City. The party appealing from a summary judgment
decision has the burden of persuading this court that the grant or denial of
summary judgment was erroneous. Doe v. Adams, 53 N.E.3d 483 (Ind. Ct. App.
2016), trans. denied.
[14] We review summary judgment de novo, applying the same standard as the trial
court. Hughley v. State, 15 N.E.3d 1000 (Ind. 2014). A party is entitled to
summary judgment if the designated evidence shows that there is no genuine
issue as to any material fact and the party is entitled to judgment as a matter of
law. Ind. Trial Rule 56(C). The movant bears the initial burden of
demonstrating the absence of any genuine issue of material fact. Hughley, 15
N.E.3d 1000. If the movant successfully carries that burden, then the
nonmovant must produce contrary evidence establishing an issue for the trier of
fact. Id. We consider all evidence and inferences in the light most favorable to
the nonmoving party. Smith v. Delta Tau Delta, 9 N.E.3d 154 (Ind. 2014).
[15] Cheesman and the City argued to the trial court and argue on appeal that Keller
failed to timely seek judicial review of the Authority’s final condemnation
decision. The trial court granted summary judgment to Cheesman and the City
Court of Appeals of Indiana | Memorandum Decision 18A02-1601-MI-188 | November 23, 2016 Page 5 of 7 on a different ground, specifically that Keller lacked standing to challenge the
demolition order.
[16] We may affirm a grant of summary judgment on any theory supported by the
evidence. Miller v. Danz, 36 N.E.3d 455 (Ind. 2015). Even if we assume for the
purposes of this appeal that Keller has standing and timely filed her request for
judicial review, there is another basis upon which to affirm the trial court’s
judgment. Specifically, in their motion for summary judgment, Cheesman and
the City argued that the February 12, 2015 order on demolition was appropriate
because Keller “refused to comply with the requests of the Enforcement
Authority in order for a possible rescission of the December 11, 2014
Demolition Order.” Appellant’s App. p. 26.
[17] Keller neither filed a response to Cheesman and the City’s motion for summary
judgment nor designated any evidence in opposition to summary judgment. As
a result, although we are mindful of our obligation to view the facts in the light
most favorable to the nonmovant, we have only Cheesman and the City’s
evidence before us. That evidence demonstrates that during the December 11,
2014 hearing, the City’s employees pointed out that the house was in extremely
poor condition and expressed doubt that it could be repaired without expending
large sums of money. For that reason, the Authority directed Keller to provide
proof within sixty days that she could pay $25,000 to rehabilitate the house.
Keller failed to provide such proof at the February 12, 2015 hearing.
Court of Appeals of Indiana | Memorandum Decision 18A02-1601-MI-188 | November 23, 2016 Page 6 of 7 [18] Appellate courts are obligated to scrutinize the record to ensure that the party
that loses on summary judgment is not improperly prevented from having its
day in court. Siner v. Kindred Hosp. Ltd. Partnership, 51 N.E.3d 1184 (Ind. 2016).
A movant bears “a heavy factual burden” to establish “the absence of any
genuine issue of material fact on at least one claim.” Id. at 1187. Even so,
Keller failed to file a response to the summary judgment motion, and as a result
Cheesman and the City demonstrated without contradiction that she failed to
comply with conditions for further continuances of the demolition order. There
was no genuine dispute of material fact, and the trial court did not err by
granting summary judgment in favor of Cheesman and the City. See Brown v.
Banta, 682 N.E.2d 582 (Ind. Ct. App. 1997) (affirming grant of summary
judgment where nonmovant failed to timely respond, effectively resulting in the
motion being unopposed), trans. denied.
[19] For the reasons stated above, we affirm the judgment of the trial court.
[20] Judgment affirmed.
Baker, J., and Najam, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A02-1601-MI-188 | November 23, 2016 Page 7 of 7