People of Conviction, Inc. v. Neighborhood Code Enforcement (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Mar 16 2018, 8:44 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Roberta L. Renbarger Adam M. Henry
Fort Wayne, Indiana Beers Mallers Backs & Salin, LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
People of Conviction, Inc., et al., March 16, 2018
Appellant, Court of Appeals Case No.
02A03-1704-MI-1138
v. Appeal from the Allen Superior
Court
Neighborhood Code The Honorable Thomas J. Felts,
Enforcement, Judge
The Honorable Andrea Trevino,
Appellee.
Magistrate
Trial Court Cause No.
02C01-1701-MI-56
Pyle, Judge.
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Statement of the Case
[1] People of Conviction, Inc. (“POC”) and Saharra Bledsoe (“Bledsoe”), who is
the founder of POC, appeal the trial court’s order “dismiss[ing] and/or
deny[ing]” POC’s petition for judicial review of a demolition order. (App. Vol.
2 at 7). The demolition order, which had been issued by the City of Fort
Wayne’s Neighborhood Code Enforcement (“NCE”), required POC to
demolish a house determined to be unsafe. After a hearing officer held a
hearing on the demolition order, at which POC failed to appear, the hearing
officer affirmed the demolition order. Bledsoe, who is not an attorney, filed, on
behalf of POC, a petition for judicial review, in which POC argued only that it
did not have adequate notice of the hearing in front of the hearing officer.
POC’s petition for judicial review did not raise a challenge to the determination
that its property was unsafe. The trial court alternatively dismissed and/or
denied POC’s petition for judicial review. Specifically, the trial court dismissed
the petition for judicial review based on POC’s failure to have an attorney
represent it at the trial court as required by statute and based on its failure to
comply with the statutory requirements for obtaining judicial review of the
hearing officer’s order affirming the demolition order. The trial court,
nevertheless, reviewed the merits of the argument raised in POC’s petition for
judicial review, concluded that POC had received adequate notice of the
hearing, and denied POC’s petition.
[2] On appeal, POC challenges only the trial court’s dismissal of its petition for
judicial review. It does not argue that the trial court’s denial of the petition—
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which was the trial court’s alternative ruling that disposed of POC’s petition—
was erroneous. Because POC fails to challenge the trial court’s denial of its
petition for judicial review and because we can affirm the trial court’s judgment
on any basis supported by the record, we need not address POC’s arguments
regarding the trial court’s dismissal of its petition for judicial review, and we
affirm the trial court’s judgment because it is sustainable on the basis of its
denial of POC’s petition for judicial review.
[3] We affirm.
Issue
Whether the trial court erred by denying POC’s petition for
judicial review.
Facts
[4] POC is an Indiana corporate entity. Bledsoe is a clergywoman and founder of
POC. POC owns property at 1325 South Anthony Boulevard in Fort Wayne.
[5] On November 30, 2016, NCE issued an “Order to Demolish” to POC
regarding its Anthony Boulevard property. (App. Vol. 2 at 17). The Order to
Demolish provided that the house, tree, and steps of POC’s property had been
deemed “unsafe” and instructed POC that it was to demolish the unsafe
structures and remove the debris by December 16, 2016. (App. Vol. 2 at 17).
[6] On December 19, 2016, a hearing officer held a hearing on the Order to
Demolish, and evidence was presented. Bledsoe appeared on behalf of POC.
At the request of POC, the hearing officer agreed to continue the hearing to
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January 17, 2017. Representatives for POC and NCE signed an
acknowledgment that the hearing was continued to January 17, 2017 at 8:30
a.m. The acknowledgement contained the following advisement: “If you do
not appear at the scheduled administrative hearing, the hearing will be held in
your absence.” (Appellee’s App. Vol. 2 at 2).
[7] POC failed to appear for the January 17 hearing. After that hearing, the
hearing officer issued a written hearing decision and affirmed NCE’s Order to
Demolish. Within the hearing decision, the hearing officer made the following
findings of fact: (1) proper notice of the hearing and the Order to Demolish
were “given to all persons with substantial property interest in the real estate
affected[;]” and (2) “[u]nder IC 36-7-9 et seq. and Chapter 150 and 152, the
building(s) is/are” a “fire hazard[,]” a “hazard to public health[,]” a “public
nuisance[,]” “[d]angerous to a person or property because of violations under
Chapter 150 or 152[,]” and “[v]acant and not maintained in a manner that
would allow human habitation, occupancy, or use under the requirements of
City Ordinance in Chapter 150 or 152.” (App. Vol. 2 at 21).
[8] Thereafter, on January 24, 2017, POC filed a petition for judicial review with
the Allen Circuit Court. Bledsoe, who is not an attorney, filed the petition on
POC’s behalf. The petition provided as follows:
This Petition for Judicial Review is filed because we received
notice of Emergency demolition of the property located at 1325
S. Anthony Blvd. We did not receive notice of a hearing to place
this property up for demolition. Therefore, we are requesting a
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stay of demolition and a hearing in order to show my plan for
bring[ing] the property up to code.
(App. Vol. 2 at 42). The petition was not verified, and Bledsoe did not include
the findings of fact or action taken by the hearing authority as required by
statute. See IND. CODE § 36-7-9-8.
[9] NCE subsequently filed its answer and affirmative defenses. As for the merits
of POC’s argument in its petition, NCE denied that it had failed to provide
notice of the hearing. NCE also argued that POC’s petition for judicial review
should be dismissed because: (1) the petition had been filed by Bledsoe, who
was not an attorney and could not represent POC in the court proceeding; (2)
there was a lack of jurisdiction; and (3) POC had failed to state a claim upon
which relief could be granted.
[10] On March 24, 2017, the trial court held a hearing. Bledsoe appeared on behalf
of POC. The record on appeal does not include a transcript of the hearing, and
the information we have regarding the hearing comes from the trial court’s
order on appeal. Apparently, during the hearing, Bledsoe argued that NCE
should have told her that POC was required to hire counsel, and she requested
additional time to obtain legal counsel for POC. In regard to POC’s lack of
notice argument raised in its petition for judicial review, Bledsoe apparently
argued that POC’s due process rights had been violated because POC did not
receive notice of the January 2017 hearing in front of the hearing officer.
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[11] Thereafter, on March 29, 2017, the trial court issued an order “dismiss[ing]
and/or deny[ing]” POC’s petition for judicial review. (App. Vol. 2 at 7). The
trial court dismissed the petition based on POC’s failure to have an attorney
represent it and its failure to comply with the statutory requirements for
obtaining judicial review of the decision of the hearing authority. In regard to
the first reason for dismissal, the trial court explained that, pursuant to
INDIANA CODE § 34-9-9-1, POC was required to be represented by an attorney.
The trial court determined that because Bledsoe, who was not an attorney and
could not represent POC, had filed POC’s petition, it was “a nullity[,] . . . ha[d]
no legal effect[,] and should be dismissed.” (App. Vol. 2 at 8).
[12] The trial court also rejected Bledsoe’s argument that NCE should have told her
that POC was required to hire counsel, and it denied her request to continue to
hire counsel, reasoning as follows:
Assuming, arguendo, that the Court were to grant [POC] leave to
obtain counsel, said action would not change the result. [POC’s]
subsequently filed Petition for Judicial Review was not verified,
did not expressly include the findings of fact and action taken by
the hearing authority, and was not timely filed . . . . Accordingly,
dismissal of the Petition for Judicial Review is proper.
(App. Vol. 2 at 8).1
1
Although the trial court stated that the petition for judicial review was untimely, that finding is not at issue
in this appeal.
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[13] Although it determined that POC’s petition should be dismissed, the trial court
also reviewed POC’s “sole issue raised in the Petition for Judicial Review” that
it did not receive notice of the January 2017 hearing on the Order to Demolish,
and it determined that the argument “fail[ed] on its merits.” (App. Vol. 2 at 9).
The trial court found that “[b]ased upon the undisputed facts presented during
the March 24th [judicial review] hearing regarding the notice issue,” there was
“no support for the assertion that [POC] received inadequate notice” of the
January 2017 hearing on the Order to Demolish “or that its due process rights
were otherwise violated.” (App. Vol. 2 at 10).
[14] Thereafter, despite the trial court’s order informing Bledsoe that she could not
represent POC, Bledsoe continued to file pleadings on behalf of POC. On April
7, 2017, Bledsoe filed with the trial court a “Notice of De Novo Appeal to
Court of Appeal,” in which she stated that POC was appealing the trial court’s
judicial review order. (App. Vol. 2 at 33). Bledsoe also filed with the trial
court a “Motion to Stay Pending Appeal.” (Appellee’s App. Vol. 2 at 6). In the
motion, she stated that she was POC’s “legal representative[.]” (Appellee’s
App. Vol. 2 at 6). Thereafter, on April 21, 2017, the trial court denied POC’s
motion to stay.
[15] In May 2017, Bledsoe realized that she had not properly filed a notice of appeal
to commence an appeal of the trial court’s judicial review order. Bledsoe then
hired counsel to represent POC on appeal. Counsel filed with our Court a
notice of appeal, a motion to file a belated brief, and a motion to stay the
enforcement of the Order to Demolish. Thereafter, in June 2017, our Court
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noted that POC’s appeal was untimely but allowed the appeal to proceed, and
we granted POC’s belated brief motion and motion to stay.
Decision
[16] POC argues that the trial court erred by dismissing POC’s petition for judicial
review of the hearing officer’s order affirming NCE’s Order to Demolish.
[17] Pursuant to the statutes relating to Indiana’s Unsafe Building Law, an
enforcement authority,2 such as NCE, is authorized to “issue an order requiring
action relative to any unsafe premises,” including demolition of an unsafe
building. See IND. CODE § 36-7-9-5. Upon the entry of such an order by an
enforcement authority, INDIANA CODE § 36-7-9-7 requires that a hearing must
be held and “conducted by the hearing authority.”3 I.C. § 36-7-9-7(a). “At the
conclusion of any hearing 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) (format
modified). INDIANA CODE § 36-7-9-8 allows for an appeal of “[a]n action taken
by the hearing authority under section 7(d)” and provides, in relevant part, as
follows:
2
“‘Enforcement authority’ refers to the chief administrative officer of the department, except in a
consolidated city. In a consolidated city, the division of development services is the enforcement authority,
subject to IC 36-3-4-23.” I.C. § 36-7-9-2.
3
“‘Hearing authority’ refers to a person or persons designated as such by the executive of a city or county, or
by the legislative body of a town. . . . An employee of the enforcement authority may not be designated as
the hearing authority.” I.C. § 36-7-9-2.
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(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.
I.C. § 36-7-9-8 (emphasis added).4
[18] The trial court, when reviewing a petition for judicial review of a demolition
order under INDIANA CODE § 36-7-9-8, is required to review it under a de novo
standard of review. See I.C. § 36-7-9-8 (c) (explaining that “[a]n appeal under
this section is an action de novo”); see also Brown v. Anderson Bd. of Pub. Safety,
777 N.E.2d 1106, 1108 (Ind. Ct. App. 2002), trans. denied. When appellate
courts review a trial court’s decision on a demolition order, “we must determine
whether it was arbitrary, capricious, an abuse of discretion, unsupported by the
evidence, or in excess of statutory authority.” Id. (citing Kopinski v. Health &
Hosp. Corp. of Marion Cnty., 766 N.E.2d 454, 454-55 (Ind. Ct. App. 2002) (citing
Kollar v. Civil City of South Bend, 695 N.E.2d 616, 619 (Ind. Ct. App. 1998), reh’g
denied, trans. denied)).
[19] Here, NCE, as the enforcement authority, issued the Order to Demolish POC’s
property that had been deemed unsafe. The hearing authority held two
4
Such an appeal may be filed by “any person who has a substantial property interest in the unsafe premises”
or “any person to whom that order or finding was issued” and “is subject to review by the circuit or superior
court of the county in which the unsafe premises are located[.]” I.C. § 36-7-9-8(a). A “‘[s]ubstantial property
interest’ means any right in real property that may be affected in a substantial way by actions authorized by
this chapter, including a fee interest, a life estate, a future interest, a mortgage interest, or an equitable interest
of a contract purchaser.” I.C. § 36-7-9-2.
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hearings on the demolition order; Bledsoe attended the first hearing on behalf of
POC but failed to attend the second hearing. After the second hearing, the
hearing authority issued findings of fact regarding the unsafe nature of the
property and took action by affirming NCE’s Order to Demolish. POC
attempted to file, pursuant to INDIANA CODE § 36-7-9-8, an appeal of the
hearing authority’s decision by filing a petition for judicial review. The
petition, however, was not verified and did not include the findings of fact or
action taken by the hearing authority as required by statute. See I.C. § 36-7-9-8.
Additionally, the petition alleged only that POC had “not receive[d] notice of a
hearing to place [its] property up for demolition” and did not challenge the
demolition order’s determination that its property was unsafe. Furthermore,
the petition was filed in the trial court by Bledsoe on POC’s behalf despite the
fact that, pursuant to INDIANA CODE § 34-9-1-1,5 POC was required to be
represented by an attorney. See Royalty Vans, Inc. v. Hill Bros. Plumbing &
Heating, Inc., 605 N.E.2d 1217, 1220 (Ind. Ct. App. 1993) (explaining that a
corporation must be “represented by an attorney in all cases except certain
small claims actions”), reh’g denied. The trial court entered an order
“dismiss[ing] and/or deny[ing]” POC’s petition for judicial review. (App. Vol.
2 at 7). The trial court dismissed the petition for judicial review based on
POC’s failure to have an attorney represent it at the trial court level as required
5
INDIANA CODE § 34-9-1-1 provides, in relevant part, that “[a] corporation and any organization required to
make application to the secretary of state under I C 25-11-1-3 must appear by [an] attorney in all cases.”
(Emphasis added).
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by statute and its failure to comply with the statutory requirements for obtaining
judicial review of the hearing officer’s order affirming the demolition order.
The trial court denied POC’s petition based on its review of the merits of POC’s
sole argument raised in its petition, its consideration of “evidence and argument
presented” during the judicial reviewing hearing, and its conclusion that POC
had adequate notice of the hearing on the demolition order. (App. Vol. 2 at 9).
[20] Now, on appeal, POC challenges only the trial court’s dismissal of its petition
for judicial review.6 It does not argue that the trial court’s denial of the
petition—which was the trial court’s alternative ruling that disposed of POC’s
petition—was erroneous. As a result, we may affirm the trial court’s order on
POC’s petition for judicial review based on the trial court’s ruling denying the
petition.
[21] “The judgment of the trial court will be affirmed on appeal if sustainable on any
basis.” Indiana State Bd. of Pub. Welfare v. Tioga Pines Living Ctr., Inc., 622
6
POC argues that the trial court erred by dismissing its petition for judicial review based on: (1) its failure to
have an attorney represent it at the trial court; and (2) its failure to comply with the statutory requirements for
obtaining judicial review. In regard to the first basis for dismissal, POC acknowledges that INDIANA CODE §
34-9-1-1 required it to be represented by counsel, but it argues that Bledsoe was unaware of the requirement
and that the trial court should have granted her a continuance to secure counsel for POC instead of
dismissing POC’s petition for judicial review on this ground. POC argues that the trial court violated POC’s
due process right to be heard by dismissing its petition for judicial review based on its failure to have an
attorney represent it and by not allowing it additional time to obtain counsel.
As for the second basis for dismissal, POC also acknowledges that INDIANA CODE § 36-7-9-8 required that its
petition for judicial review be verified and include findings of fact and the action taken by the hearing
authority and that its petition lacked these. POC, however, contends that the statement in its petition for
judicial review “appears to encompass” the statutory requirement of including findings of fact and the action
taken by the hearing authority. (POC’s Br. at 14). In other words, POC seems to be arguing that its failure to
follow the requirements of INDIANA CODE § 36-7-9-8 should be excused because its petition for judicial
review substantially complied with the statute.
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N.E.2d 935, 940 (Ind. 1993) (relating to summary judgment), cert. denied. See
also Price v. Ind. Dep’t of Child Servs., 80 N.E.3d 170, 173 (Ind. 2017) (explaining
that appellate courts will affirm a trial court’s decision to dismiss a complaint if
it “‘is sustainable on any basis in the record’”) (quoting Thorton v. State, 43
N.E.3d 585, 587 (Ind. 2015)); Neeley v. State, 70 N.E.3d 866, 870 (Ind. Ct. App.
2017) (stating that “[w]e may affirm a trial court’s decision regarding the
admission of evidence if it is sustainable on any basis in the record”); Faris v.
State, 901 N.E.2d 1123, 1126 (Ind. Ct. App. 2009) (explaining that appellate
courts will affirm the denial of a motion to suppress if it is “sustainable on any
legal grounds apparent in the record”), trans. denied.
[22] POC makes no argument challenging the trial court’s determination of the
merits of its issue raised in POC’s petition for judicial review that served as the
basis for the trial court’s ruling denying POC’s petition. Specifically, the issue
raised by POC’s argument in its petition was that it did not have notice of the
January 2017 hearing before the hearing authority. During the March 2017
judicial review hearing, the parties presented “evidence and argument”
regarding this notice issue, and the trial court found “no support for the
assertion that [POC] received inadequate notice of the January 17, 2017
hearing[.]” (App. Vol. 2 at 9, 10). It was on this basis that the trial court
alternatively ruled on POC’s petition for judicial review and denied it.
[23] Because POC fails to challenge the trial court’s denial of its petition for judicial
review and because we can affirm the trial court’s judgment on any basis
supported by the record, we need not address POC’s arguments regarding the
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trial court’s dismissal of its petition for judicial review. We conclude that the
trial court’s judgment is sustainable on the basis of its denial of POC’s petition
for judicial review, and we affirm the trial court’s judgment.
[24] Affirmed.
Riley, J., and Robb, J., concur.
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