FILED Nov 26 2019, 6:09 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES A. Richard M. Blaiklock Janette E. Surrisi Ryan J. Vershay James N. Clevenger Derek G. Raymond Wyland, Humphrey, Clevenger & Lewis Wagner, LLP Surrisi, LLP Indianapolis, Indiana Plymouth, Indiana
IN THE COURT OF APPEALS OF INDIANA
Scotty VanHawk and November 26, 2019 The 27 Group, Inc., Court of Appeals Case No. Appellants-Defendants, 19A-CC-408 Appeal from the Marshall Circuit v. Court The Honorable Curtis D. Palmer, Town of Culver, Indiana and Judge Culver Building Commissioner, Trial Court Cause No. Appellees-Plaintiffs, 50C01-1808-CC-381
Robb, Judge.
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 1 of 24 Case Summary and Issues [1] Following an inspection, the Town of Culver’s (“Culver”) Building
Commissioner sought to designate a building located at 415 Lakeshore Drive,
Culver, Indiana (the “Property”), an unsafe building pursuant to Culver’s
Unsafe Building Ordinance (“UBO”). The 27 Group, Inc., a dissolved
corporation, owned the Property. Scotty VanHawk was the corporation’s
officer and Katie Delacruz was the corporation’s registered agent. No action
was taken to repair the Property. The Marshall County Unsafe Building
Committee convened and determined the Property was an unsafe building and
ordered it to be demolished. Three weeks later, Culver filed a Complaint to
Public Nuisance and Unsafe Building and Request for Preliminary Relief, as
well as an Application for an Injunction, with the trial court. Following a
hearing on Culver’s complaint and application for injunction, the trial court
issued an order determining the Property was a public nuisance and an unsafe
building and ordering it to be demolished. The 27 Group, Inc. appeals and
raises numerous issues which we consolidate and restate as: (1) whether the
trial court’s demolition order was clearly erroneous; and (2) whether Culver
should be awarded appellate attorney fees. We conclude the trial court’s
demolition order was not clearly erroneous under a common law public
nuisance theory and decline to award Culver appellate damages. Accordingly,
we affirm.
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 2 of 24 Facts and Procedural History 1
[2] After Culver received a report that there was a “broken door wide open” on the
Property, it notified Chuck Dewitt, the town’s Building Commissioner.2
Transcript, Volume II at 10. On June 27, 2018, Dewitt inspected the Property
“to make sure that no one was there . . . and no one was injured at that time.”
Id. Dewitt took numerous photos of the condition of the Property and then
contacted The 27 Group,3 who subsequently boarded up the door. Culver had
previously adopted Ordinance 2015.007, which included Indiana Code sections
36-7-9-1 through -28, which govern unsafe buildings. Pursuant to this
authority, Dewitt took steps to designate the Property an unsafe building. On
July 24, 2018, the Marshall County Unsafe Building Committee (hereafter
“Hearing Authority”), of which Dewitt is a member, convened to determine the
status of the Property. The Hearing Authority determined that The 27 Group,
Inc. owned the Property, with Scotty VanHawk being an officer and Katie
Delacruz the resident agent of the corporation. However, The 27 Group, Inc.
had been administratively dissolved prior to the Hearing Authority’s meeting.4
1 We held oral argument on this case on October 28, 2019, at the Indiana Historical Society in Indianapolis, Indiana. We thank the Indianapolis Scientech Club for hosting this oral argument, the Indianapolis Historical Society for their efforts in coordinating this event, and counsel for their advocacy. 2 Dewitt also serves as the Building Commissioner for Marshall County and the Town of Argos. 3 It is unclear how Dewitt contacted The 27 Group, Inc. 4 Throughout its brief, Culver collectively refers to The 27 Group, Inc., Scotty VanHawk, and Katie Delacruz as “VanHawk.” Because the corporation owns the Property at issue in this case and, as discussed in Section II.A., Culver concedes that this is an in rem action and has not attempted to pierce the corporate veil or
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 3 of 24 [3] The Hearing Authority determined that the Property was unsafe and needed to
be demolished.5 At some point, notice was sent to The 27 Group, Inc. to repair
the Property; however, no action was taken. On August 15, 2018, following the
Hearing Authority’s determination, Culver filed in the trial court its Complaint
to Public Nuisance and Unsafe Building and Request for Preliminary Relief
against The 27 Group, Inc. Culver alleged that the Property was unsafe and a
public nuisance:
6. [Culver] and the [Hearing Authority] met on July 24, 2018 and made a determination under Indiana Code 36-7-9-5, that the property at 415 Lakeshore Drive, Culver[,] Indiana 46511, is an unsafe building and a public nuisance.
7. The Subject Property is unsafe for the following reasons:
a. The structure on the Subject Property is unoccupied and has been unoccupied for years. It has broken windows, unlocked doors, holes at various locations, all of which allow children and pests to enter the structure. Ceiling tiles have fallen and are hanging.
b. Constitutes a fire hazard.
sought a personal judgment against Mr. VanHawk, we will refer to the appellant as The 27 Group, Inc. or “the Corporation.” Similarly, where applicable, Mr. VanHawk refers to Scotty VanHawk alone. 5 In its order, the trial court did not enter a finding as to what the Hearing Authority specifically ordered; however, Dewitt testified that the Hearing Authority recommended demolition of the unsafe building.
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 4 of 24 c. Hazardous to public health in that the interior is full of mold. An odor emits from the structure.
d. Unfit for human habitation with mold, excessive trash and no utilities.
e. A public nuisance located in the middle of a residential area.
8. [Culver] has sent certified letters to [The 27 Group, Inc.] that the Subject Property constitutes an Unsafe Building.
9. [The 27 Group, Inc.] ha[s] not remedied the conditions of the Subject Property.
10. The condition of the Subject Property continues to deteriorate and as such is a public nuisance and a hazard to the public, unsafe building and/or unsafe premise. [The 27 Group, Inc.] has failed to: repair, rehabilitate, demolish, or remove the portions of the Subject Property so as to bring the property into compliance with Town and State rules and regulations and to eliminate the nuisance thereon.
11. The Subject Property has a negative effect on the property values and the quality of life in the surrounding area.
12. Marshall County Ordinance 2015-12, Indiana Code 36-7- 9, and Culver Town Ordinance 2015-17 provide the authority to the Court to enter a continuous enforcement order so as to require the Subject Property be remediated at owner’s expense.
13. [Culver] and, in particular, Town citizens and neighbors in [Culver], will continue to suffer immediate and irreparable harm unless the Court issues an Order to allow [Culver] to demolish Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 5 of 24 the [S]ubject [P]roperty and order [The 27 Group, Inc.] to pay the cost incurred by [Culver] for said demolition.
Appendix to Appellants’ Brief, Volume II at 12-13. Culver requested that the
trial court order The 27 Group, Inc. to repair the Property or issue an order
authorizing Culver to demolish it, and order The 27 Group, Inc. to pay a civil
penalty and reasonable attorney fees. The same day, Culver also filed an
Application for Injunction, in which it requested that the trial court hold a
hearing and issue an injunction ordering the Corporation to repair the Property.
In its motion, Culver asserted that the Property was determined to be unsafe by
the Hearing Authority pursuant to Indiana Code section 36-7-9-5. Service of
the complaint and summons was made on the three defendants by publication
and Mr. VanHawk was also personally served.
[4] On December 18, 2018, the trial court held a hearing on Culver’s Motion for a
Preliminary Injunction. Mr. VanHawk appeared and notified the trial court
that he suffers from a hearing disability and was unable to hear the proceedings.
The trial court continued the hearing to allow Mr. VanHawk time to obtain
counsel and for the court to arrange real time transcription service. The trial
court asked Mr. VanHawk if he understood that the case involved the condition
of the 415 Lakeshore Drive property to which Mr. VanHawk responded, “I do
now.” Tr., Vol. I at 5.
[5] One month later, the trial court held the continued hearing and provided real
time transcription for Mr. VanHawk. At the outset of the hearing, Mr.
VanHawk informed the trial court that he had not hired an attorney. Instead, Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 6 of 24 he explained that he had been unaware of the subject of the previous hearing.
He stated,
When you gave the information to me and I see what it’s about, I have no connection. I . . . would like a motion to dismiss, there is no reason to tie me to this entire ordeal. . . . I’ve never owned property in Culver, I don’t own property in Culver, yet I’ve been drug into this, numerous times.
Tr., Vol. II at 4-5. The trial court responded, “If you feel you have no
connection to this case[,] you are not required to stay here today, you may leave
if that’s your preference.” Id. at 5. After realizing the case would not be
dismissed, Mr. VanHawk indicated he “absolutely [did] need time [to obtain]
legal representation.” Id. at 6. The trial court denied Mr. VanHawk’s request
for additional delay to obtain representation, explaining that it “gave [Mr.
VanHawk] time to get representation at the last hearing and that has not
happened[.]” Id. at 8. The trial court then stated, “[Counsel for Culver], you
may go ahead, Mr. VanHawk is free to stay if he wishes or leave if he wishes.”
Id. The record reveals that Mr. VanHawk then exited the courtroom. 6
[6] Culver called its first witness and the hearing proceeded without Mr. VanHawk.
Culver offered sixty-five photos that Dewitt took during his inspection to
demonstrate the condition of the Property and 2009 through 2017 tax
6 “[F]or the record, Mr. VanHawk has exited the Courtroom and I presume exited the building.” Id. at 9. The trial court stopped the real time transcription and stated that if Mr. VanHawk returned and requested an official transcript of the hearing, the court reporter would provide him with a copy.
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 7 of 24 assessments and payments on the Property, all of which were admitted. 7
However, the Hearing Authority’s determination was not offered or entered
into evidence at the hearing. Dewitt testified that the process “involve[d] going
before the [Hearing Authority], presenting the case there and getting a reading
and ruling back from them.” Id. at 11. He further testified that the Hearing
Authority met on July 24, 2018, and determined the Property was “definitely
unsafe and we needed to proceed with tearing the building down.” Id.
Specifically, he stated that the Hearing Authority determined it was unsafe
“because of the deteriorated condition of the building . . . the roof coming apart
falling in. The outside coming apart, it’s open to animals . . . cats, raccoons,
. . . there are bats and that sort of thing that are in and around there all the
time.” Id. at 12. He also stated the building was a fire hazard and filled with
mold.
[7] When asked what Culver would like to happen, Jonathan Leist, Culver’s Town
Manager, testified: “[W]e’d like to see the findings of the [Hearing Authority]
upheld, and we’ve asked for demolition . . . on the property. Give the property
owner an opportunity to demolish it, and if he won’t then we would move in
and do it ourselves.” Id. at 49. At the conclusion of the hearing, the trial court
determined that the Property was a public nuisance and an unsafe building,
granted judgment in favor of Culver, and ordered The 27 Group, Inc. to
7 Although the photos included a stamped date of June 27 and November 27, 2019, Dewitt testified that he took the photos on June 27 and November 27, 2018, not 2019. He testified that his camera had the wrong date. See id. at 15.
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 8 of 24 demolish the building. The trial court subsequently issued a written order,
finding in relevant part:
3. [Culver] determined that the deeded owner of [the Property] was The 27 Group, Inc. Said Subject Property was alleged to be a public nuisance and an unsafe building and was reviewed by the [Hearing Authority] on July 24, 2018. Said committee made a determination at its meeting that under I.C. 36-7-9-5 and the Town ordinance that the Subject Property was an unsafe building and a public nuisance. Notice was sent to [The 27 Group, Inc.] to repair the Subject Property.
4. The Subject Property was not repaired. There was no action taken by [The 27 Group, Inc.] to bring the Subject Property into compliance.
5. Thereafter, service of process was issued to the registered agent of the corporation but was returned by the Sheriff of Kosciusko County that the resident agent did not reside at the address. Service of process thereafter issued on all three (3) Defendants by publication in accordance with the Indiana Trial Rules and Summons was posted at the structure at 415 Lakeshore Drive, Culver, Indiana premises. Further, Scotty VanHawk was personally served summons on September 28, 2018.
6. Evidence was presented concerning the condition of the Subject Property which included as follows:
a. The structure at 415 Lakeshore Drive has been unoccupied for over four (4) years.
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 9 of 24 b. The roof has numerous holes causing significant leaking of water into the interior of the building. The roofing substance is delaminating.
c. There are numerous holes in the walls.
d. The structure has broken windows.
e. Doors and windows are not securely covered.
f. There was evidence of vandals and pests entering the structure. Animal feces was found in the building.
g. The foundation of the structure is cracked and crumbling so as to put at risk that portions of the building could collapse.
h. Interior ceiling has fallen in. Trusses are shown to be compromised.
i. There is evidence of significant water damage to the interior of the building. White and black mold is prevalent throughout the interior walls.
j. The structure emits an offensive odor.
7. The Subject Property has a negative effect on property values and the quality of life to the surrounding neighbors and to many Culver citizens who pass by the Subject Property which is located on the main street connecting the public park to the main commercial area of the Town.
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 10 of 24 8. The building on the Subject Property is unrepairable and cannot be brought into compliance with the Unsafe Building Law. The only remedy is demolition.
9. [T]he structure . . . is an unsafe building due to its impaired structure, a fire hazard, hazard to public health, public nuisance, vacant and blighted and maintained in such a [manner] that it is unfit for human habitation.
Appealed Order at 2-3. The trial court specifically stated that, if The 27 Group,
Inc. fails to demolish the building, Culver may demolish the building and
recoup expenses from the Corporation. The 27 Group, Inc. now appeals.
Discussion and Decision I. Standard of Review [8] Where, as here, issues are tried upon the facts by the trial court without a jury,
and the trial court enters specific findings sua sponte, we apply a two-tiered
standard and determine whether the evidence supports the findings, and then
whether the findings support the judgment. Abrell v. Delaware Cty. Reg’l
Wastewater Dist., 131 N.E.3d 725, 728 (Ind. Ct. App. 2019). Findings and
conclusions will be set aside only if they are clearly erroneous, that is, when the
record contains no facts or inferences to support them. Id. A judgment is
clearly erroneous when our review of the record leaves us with a firm
conviction that a mistake has been made. Id. We defer substantially to findings
of fact but not to conclusions of law. Id. The purpose of specific findings and
conclusions is to provide the parties and reviewing courts with the legal theory
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 11 of 24 upon which the trial court relied in reaching its decision. Estate of Kappel v.
Kappel, 979 N.E.2d 642, 652 (Ind. Ct. App. 2012). We may affirm a judgment
on any legal theory, whether or not relied upon by the trial court, as long as the
trial court’s findings are not clearly erroneous and support the theory adopted.
RCM Phoenix Partners, LLC v. 2007 East Meadows, LP, 118 N.E.3d 756, 760 (Ind.
Ct. App. 2019). “Where trial court findings on one legal theory are adequate,
findings on another legal theory amount to mere surplusage and cannot
constitute a basis for reversal even if erroneous.” Borth v. Borth, 806 N.E.2d
866, 870 (Ind. Ct. App. 2004).
II. Demolition Order A. In Rem Proceeding [9] Before addressing the merits of this appeal, we pause to clarify the effect of any
order issued by the trial court in this matter. Here, Culver filed its complaint
listing The 27 Group, Inc., Mr. VanHawk, and Katie Delacruz as defendants
and each defendant was served. See App. to Appellant’s Br., Vol. II at 12.8
However, The 27 Group, Inc., not Mr. VanHawk or Delacruz, is the owner of
the record title to the Property and it has been administratively dissolved.
Pursuant to Indiana Code section 23-1-45-7(d), claims against a dissolved
8 The record reveals that service of Culver’s complaint was sent to The 27 Group, Inc., Katie Delacruz, and Mr. VanHawk. However, for each, the Chronological Case Summary indicates “Service Returned Not Served” on September 18, 2018. App. to Appellant’s Br., Vol. II at 4. Culver subsequently filed a request for service by publication, which was granted and executed on September 20, 2018. See id. at 5. Mr. VanHawk was personally served on September 28, 2018.
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 12 of 24 corporation may be enforced against the dissolved corporation, to the extent of
its undistributed assets, or if the assets have been distributed in liquidation,
against a shareholder of the dissolved corporation to the extent of the
shareholder’s pro rata share of the claim or the corporate assets distributed to
the shareholder in liquidation, whichever is less. However, a shareholder’s total
liability for all claims may not exceed the total amount of assets distributed to
the shareholder. Id.
[10] At oral argument, Culver conceded that its complaint was an in rem action.
Causes of action filed against property rather than against a person are actions
in rem. $100 v. State, 822 N.E.2d 1001, 1008 (Ind. Ct. App. 2005), trans. denied.
Culver never proved or attempted to prove that Mr. VanHawk was a
shareholder of the dissolved corporation, potentially subjecting him to liability
to the extent that corporate assets had been transferred to him, nor did Culver
pierce or attempt to pierce the corporate veil or seek a personal judgment
against Mr. VanHawk. As such, despite Mr. VanHawk being named a
defendant in this action, any order issued by the trial court binds only The 27
Group, Inc. and does not constitute a personal judgment against Mr.
VanHawk.
B. Statutory Framework [11] The crux of the dispute between the parties is the validity of the trial court’s
demolition order – with each party’s argument premised on a different statutory
framework. In essence, The 27 Group, Inc. argues that Culver’s Unsafe
Building Ordinance violates Indiana’s Unsafe Building Law because Dewitt Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 13 of 24 served in a dual capacity as Culver’s enforcement authority, in which he is
charged with the duty of enforcing Culver’s Unsafe Building Ordinance, and as
a member of the Hearing Authority, which deprived it of its due process right to
a fair and impartial hearing. The 27 Group, Inc. argues that the trial court was
engaged in judicial review of the Hearing Authority’s order and the deprivation
of his due process rights renders the Hearing Authority’s order and the trial
court’s demolition order void. Culver maintains that the trial court was not
reviewing the Hearing Authority’s order because it filed an independent civil
action pursuant to Indiana Code section 36-7-9-17, in which the underlying
administrative order and proceeding is immaterial. We first address this dispute
among the parties.
[12] Indiana’s Unsafe Building Law provides that an action by the hearing authority
is subject to judicial review upon the request of any person with a substantial
property interest in the unsafe premises or any person to whom the order or
finding was issued. Ind. Code § 36-7-9-8(a). The person seeking judicial review
must file a verified complaint which includes the findings of fact and action
taken by the hearing authority. Ind. Code § 36-7-9-8(b). The complaint must
be filed within ten days after the issuance of the hearing authority’s order. Id.
The trial court reviews the appeal de novo and may affirm, modify, or reverse
the action taken by the hearing authority. Ind. Code § 36-7-9-8(c). We
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 14 of 24 conclude that, because The 27 Group, Inc. did not file a petition for judicial
review, the trial court could not engage in judicial review.9
[13] On the other hand, pursuant to Indiana Code section 36-7-9-17(a), the
department,10 acting through its enforcement authority, may file a civil action
regarding unsafe premises with the trial court, and the trial court may grant one
or more kinds of the following relief authorized by sections 18 through 22 of chapter
36-7-9: issuing an injunction, requiring posting of a performance bond,
imposing civil penalties, appointing a receiver, permitting rehabilitation of the
premises, enforcing an order by authorizing a contractor to perform the action
required by the order, or allowing the enforcement authority to make the
premises safe in an emergency situation. The statute specifically limits the relief
the trial court may grant in an independent civil action under this section to
those options described by sections 18 through 22. And contrary to Culver’s
assertions, none of these sections authorize the trial court to order demolition.
Therefore, if Culver filed an independent civil action as it maintains, the trial
court exceeded its statutory authority by ordering relief not authorized by
9 Since no judicial review was sought and the Hearing Authority order became final, any question regarding the dual role of Dewitt is moot. Accordingly, the propriety of the underlying administrative hearing and order are immaterial to the resolution of this dispute. 10 “Department” “refers to the executive department authorized by ordinance to administer this chapter. In a consolidated city, this department is the department of code enforcement authority, subject to IC 36-3-4-23.” Ind. Code § 36-7-9-2. Section 150.068 of Culver’s UBO provides, “The Town of Culver Building Commissioner shall be authorized to administer and to proceed under the provisions of said law in ordering the repair or removal of any buildings or materials found to be unsafe[.]” App. to Appellant’s Br., Vol. II at 28.
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 15 of 24 statute, and this court could reverse the judgment and remand to the trial court
to order relief authorized by statute.
[14] Having concluded the trial court could not have been engaged in judicial review
of the Hearing Authority’s order or have granted relief not authorized by the
Unsafe Building Law, we now evaluate the validity of the trial court’s
demolition order on different grounds.
C. Common Law Public Nuisance [15] A public nuisance claim may be brought under Indiana Code section 32-30-6-6,
which provides: “Whatever is injurious to health; indecent; offensive to the
senses; or an obstruction to the free use of property; so as essentially to interfere
with the comfortable enjoyment of life or property, is a nuisance, and the
subject of an action.” There is no dispute that Culver did not cite to this statute
in its complaint. In fact, at oral argument, Culver conceded that it did not cite
to or rely on Indiana’s Public Nuisance statute in its complaint and therefore
did not plead statutory public nuisance. Nonetheless, we affirm the trial court’s
demolition under the theory of common law public nuisance.
[16] Although Indiana has specifically declared that the conduct prescribed in the
statute constitutes a public nuisance, “the common law tort of public nuisance
exists[.]” Restatement (Second) of Torts § 821B, cmt. b (1977). As the
Supreme Court of Illinois has explained, “the codification of certain common
law nuisances in the Criminal Code and the legislative declaration that certain
other conditions constitute nuisances does not exclude common law nuisances
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 16 of 24 not codified therein from being classed as public nuisances.” City of Chicago v.
Beretta U.S.A. Corp., 821 N.E.2d 1099, 1120 (Ill. 2004). Our supreme court also
recognizes this principle and has held that “a public nuisance may exist without
an underlying independent tort, although some elements of the two may be
indistinguishable in practical terms[.]” City of Gary ex. rel. King v. Smith &
Wesson Corp., 801 N.E.2d 1222, 1233-34 (Ind. 2003) (where city filed public
nuisance claim against firearm manufacturers alleging (among other things)
negligence and foreseeable injury). The Restatement (Second) of Torts § 821B
provides the common law action for a public nuisance and states:
(1) A public nuisance is an unreasonable interference with a right common to the general public.
(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:
(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or
(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or
(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 17 of 24 A public right is one that is common to all members of the general public, but it
is not “necessary that the entire community be affected by a public nuisance, so
long as the nuisance will interfere with those who come in contact with it in the
exercise of a public right or it otherwise affects the interests of the community at
large.” Id. at cmt. g. The remedies available under the common law tort of
public nuisance include the recovery of damages or injunctive relief to abate the
nuisance.11 Restatement (Second) of Torts § 821C. To recover in a suit to
enjoin to abate a public nuisance, one must have the authority as a public
official or public agency to represent the state or a political subdivision in the
matter or have standing to sue as a representative of the general public. Id. at
(2)(b)-(c).
[17] Here, Culver, through its Building Commissioner, sufficiently pleaded a
common law public nuisance claim in its complaint by alleging that the
Property is hazardous to public health, emits an odor, is a public nuisance
located in the middle of a residential area, and has a negative effect on property
values and the quality of life of those in the surrounding area. Culver also
alleged that the Property will continue to harm the Town, its citizens, and
neighbors unless the nuisance is removed. See App. to Appellants’ Br., Vol. II
at 12-13; see also Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136, 1141-43
(Ohio 2002) (city sufficiently pleaded common law public nuisance claim when
it alleged that the defendants created and maintained a public nuisance by
11 Abatement is defined as the “act of eliminating or nullifying[.]” Black’s Law Dictionary (11th ed. 2019).
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 18 of 24 manufacturing, marketing, distributing, and selling firearms in ways that
unreasonably interfere with the public health, welfare, and safety in the city and
the residents of the city have a common right to be free from such conduct). In
essence, Culver sought to enjoin the Corporation from continuing to neglect the
Property by obtaining an order to repair or abate the public nuisance altogether.
[18] The trial court held a hearing on Culver’s complaint during which Culver
presented over sixty-five photos depicting the condition of the Property, and
offered testimony from two Culver residents who own property near the
Property, the Building Commissioner, Town Manager, member of the Town
Council, and the President of the Culver Redevelopment Commission. Leist,
the Town Manager, testified that Lakeshore Drive is Culver’s “busiest street”
and is “at the edge of one commercial district that then connects over to our
schools on the other end of town[.]” Tr., Vol. II at 48. Leist visited the
Property and testified that “immediately upon getting out of [his] car on
Lakeshore Drive[, the odor] was noticeable, you know a warm day in June, and
with that window broken or the door broken, it was unmistakable.” Id. Leist
further explained the extent of pedestrian and vehicle traffic, stating that the
Property is right next to Culver Park on Lake Maxinkuckee and
[w]e’ve got people walking to the beach all summer, we’ve got Culver Boys and Girls Club who we provide free access to the park and beach all summer walking back and forth there . . . daily. . . . [S]ixty (60) to eighty (80) kids daily walking by there, and yeah, we’ve had incidents of broken glass, the door being open, windows being broken. Condoms and beer cans being found in the alcoves there as well.
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 19 of 24 Id. at 48-49. At the end of the hearing, the trial court found the Property to be a
public nuisance that should be demolished. The trial court subsequently
entered a written demolition order, in which it found that the Property is
located on the main street connecting the public park to the main commercial
area of Town, is a public health hazard and emits an offensive odor, and has a
negative effect on property values and the quality of life to the surrounding
neighbors and many town citizens who pass by. See Appealed Order at 2-4.
[19] Although not the theory relied upon by the trial court, these findings support a
conclusion that the Property constitutes a common law public nuisance and
should be abated, namely that the Property’s deteriorating condition
substantially interferes with the Town and its citizens’ right to be free from
public health hazards. RCM Phoenix Partners, LLC, 118 N.E.3d at 760; see also
Restatement (Second) of Torts § 821B(1). These findings also demonstrate that
the Property affects the peace, safety, and comfort of those who walk along
Lakeshore Drive to go to the beach or the commercial district as they are
subjected to the offensive odor emitted by the Property. Restatement (Second)
of Torts § 821B(2)(a). In sum, the trial court’s demolition order was not clearly
erroneous under a common law public nuisance claim.
III. Appellate Attorney Fees [20] Culver requests an award of appellate damages pursuant to Indiana Appellate
Rule 66(E), which provides for the assessment of damages “if an appeal,
petition, or motion, or response, is frivolous or in bad faith.” Our discretion to
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 20 of 24 award attorney fees under Rule 66(E) is limited, however, to instances when an
appeal is permeated with meritlessness, bad faith, frivolity, harassment,
vexatiousness, or purpose of delay. Thacker v. Wentzel, 797 N.E.2d 342, 346
(Ind. Ct. App. 2003). And although our authority to award damages on appeal
is discretionary, “we must use extreme restraint when exercising this power
because of the potential chilling effect upon the exercise of the right to appeal.”
Townsend v. Townsend, 20 N.E.3d 877, 880 (Ind. Ct. App. 2014), trans. denied. A
strong showing is required to justify an award of appellate damages, and the
sanction is not imposed to punish mere lack of merit, but something more
egregious. Harness v. Schmitt, 924 N.E.2d 162, 168 (Ind. Ct. App. 2010).
[21] Indiana appellate courts group claims for appellate damages into two categories
– substantive bad faith or procedural bad faith. Id. Substantive bad faith
implies conscious wrongdoing due to “dishonest purpose or moral obliquity”
whereas procedural bad faith exists when a party flagrantly disregards the form
and content requirement of our rules, omits and misstates relevant facts
appearing in the record, and files briefs that appear to have been written in a
manner calculated to require the maximum expenditure of time both by the
opposing party and the reviewing court. Id. To prevail on a substantive bad
faith claim, the party must show that the appellant’s contentions and argument
are utterly devoid of all plausibility. Id. at 169. Even when an appellant’s
conduct falls short of that which is “deliberate or by design,” procedural bad
faith can still be found. Manous, LLC v. Manousogianakis, 824 N.E.2d 756, 768
(Ind. Ct. App. 2005).
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 21 of 24 [22] Culver asserts that, because Mr. VanHawk failed to participate in the
proceedings before the trial court by disclaiming any interest in the Property
and voluntarily leaving the hearing, The 27 Group, Inc. should be estopped
from challenging any issues on appeal. See Appellees’ Brief at 35.
Furthermore, Culver takes issue with the Corporation’s recitation of the facts in
its appellate brief, stating that it does not mention that Mr. VanHawk
disclaimed all interest in the Property and chose not to participate in the
hearing. Culver claims that The 27 Group Inc.’s omission of this important fact
constitutes procedural bad faith.
[23] Culver also claims that the Corporation demonstrated a “pattern of delay and
harassment” throughout its interactions with Culver. Id. at 37. To demonstrate
this delay, Culver argues that, at the initial hearing, Mr. VanHawk stated that
he understood what the case was about, he required assistive technology for his
hearing disability, and he needed to obtain counsel. The trial court accordingly
granted a continuance to allow Mr. VanHawk time to hire counsel and for the
trial court to accommodate Mr. VanHawk’s disability by obtaining the
technology to allow real time transcription. However, at the continued hearing,
Mr. VanHawk appeared without counsel, disclaimed all interest in the
Property, and voluntarily chose not to participate in the proceedings. Culver
maintains that Mr. VanHawk did not truly understand what the case was about
until after the first hearing and then decided it did not pertain to him and
“[n]evertheless, he didn’t call the trial court and tell them to cancel the real time
transcription and go on without him. [Instead], he left everyone to continue to
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 22 of 24 incur expenses and he dragged out the proceedings.” Id. at 39. Culver’s
argument here is problematic. Culver never attempted to pierce the corporate
veil, nor did it allege that Mr. VanHawk had corporate assets. Therefore, there
was never any basis for personal liability, yet Culver sporadically argues that
Mr. VanHawk is subject to liability despite conceding that this is just an in rem
action.
[24] Furthermore, following the Hearing Authority’s order, The 27 Group, Inc. had
ten days to petition for judicial review and did not do so. Ind. Code. § 36-7-9-
8(b). Therefore, the Hearing Authority’s order was a final administrative order,
which provided Culver with the remedy it initially wanted and later sought
from the trial court – demolition. Culver’s decision to file an independent civil
action to obtain an order to demolish the Property was unnecessary and, at oral
argument, Culver acknowledged that it was taking a “belt and suspenders”
approach. For this sole reason, we decline to award appellate damages to
Culver.
Conclusion [25] For the reasons set forth above, we conclude the trial court’s demolition order
was not clearly erroneous under the theory of common law public nuisance. To
the extent that The 27 Group, Inc. has corporate assets, any liability resulting
from the trial court’s demolition order binds the Corporation, not Mr.
VanHawk. Because the Hearing Authority’s order was a final administrative
order which had already granted the relief Culver later sought by filing its
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 23 of 24 complaint with the trial court, this litigation was unnecessary, and we decline to
award Culver appellate damages from The 27 Group, Inc. Accordingly, the
judgment of the trial court is affirmed.
[26] Affirmed.
Najam, J., and Bradford, J., concur.
Court of Appeals of Indiana | Opinion 19A-CC-408 | November 26, 2019 Page 24 of 24