Marcius Strawhorn and HSD of Central Indiana, LLC v. Town of Hillsboro, Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
FILED
Memorandum Decision shall not be regarded as Apr 20 2020, 9:06 am
precedent or cited before any court except for the
CLERK
purpose of establishing the defense of res judicata, Indiana Supreme Court
Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Marcius Strawhorn Stuart K Weliever
Hillsboro, Indiana Henthorn, Harris, Weliever & Petrie
Crawfordsville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marcius Strawhorn and HSD of April 20, 2020
Central Indiana, LLC, Court of Appeals Case No.
Appellants-Petitioners, 19A-MI-893
Appeal from the Fountain Circuit
v. Court
The Hon. Stephanie S. Campbell,
Town of Hillsboro, Indiana, Judge
Appellee-Respondent. Trial Court Cause No.
23C01-1812-MI-489
Bradford, Chief Judge.
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Case Summary
[1] Marcius Strawhorn lives in a house he is purchasing on contract from HSD of
Central Indiana, LLC1 (“the Property”), in Hillsboro (“the Town”). On
September 15, 2018, the Town issued Strawhorn a citation pursuant to Town
Ordinance 2017-04 (“the Nuisance Ordinance”), identifying overgrowth,
multiple unplated vehicles, and trash on the Property. Following a hearing, the
trial court found Strawhorn and HSD to be in violation of the Nuisance
Ordinance, imposed a fine retroactive to the date of the citation, ordered that
they pay the Town’s attorney’s fees, and authorized the Town to take measures
to abate the nuisance at Strawhorn’s and HSD’s cost. Strawhorn contends that
the Town failed to establish that he violated the Nuisance Ordinance and that
the Nuisance Ordinance was unfairly enforced against him because it was not
enforced against other properties that were allegedly worse. Because we
disagree, we affirm.
Facts and Procedural History
[2] As of mid-September of 2018, the Property was overgrown with shrubs and
weeds and had two vehicles and “a lot of trash” in the driveway, which trash
consisted of car parts, broken toys, bicycles, and similar items. Tr. Vol. II p. 6.
There were also four vehicles behind the structure, hidden by weeds, which
were not plated and had been there more than thirty days. The Town received
1
HSD does not participate in this appeal.
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a complaint regarding the Property, and, on September 15, 2018, Deputy Town
Marshal James Clark delivered a “Notice to Abate a Nuisance” (“the Notice”)
to the Property at the direction of the Town Council. Ex. 1. The Notice
indicated that the Property represented a public nuisance due to tall grass, trash,
vehicles, and overgrown trees and shrubs.
[3] On October 12, 2018, the Town’s attorney sent a letter to Strawhorn notifying
him that he had not yet abated the nuisance on the Property and that the Town
reserved the right to pursue any and all legal remedies available to it if the
nuisance was not abated on or before October 29, 2018. On November 14,
2018, the Town’s attorney sent a letter to Gary Hamand, one of the members of
HSD, informing him that the Town intended to commence litigation if the
nuisance on the Property was not abated. On December 20, 2018, the Town
petitioned for the abatement and injunction of the nuisance on the Property
(“the Petition”).
[4] On February 21, 2019, the trial court held a hearing on the Petition. Deputy
Clark testified that he had driven by the Property on the morning of the hearing
and that there were still vehicles on it which had not been moved in a
considerable amount of time and were neither plated nor operational. Town
Council member Edward Moyer testified that he had visited the Property on
February 19, 2019, and had taken several photographs and that it still contained
trash and vehicles and was “an eyesore to the community[.]” Tr. Vol. II p. 14.
The photographs taken by Moyer showed multiple broken bicycles in the
driveway along with other trash and multiple vehicles in the driveway and
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backyard. Moyer indicated that the vehicles in the backyard were visible from
public property and that the Town Council believed the Property, in its current
state, to be a danger to public health and safety; potentially injurious to public
health; offensive to the senses; and an obstruction to the free use of other
property in the area. Strawhorn acknowledged that there were still three
unplated vehicles in the Property’s driveway which had not moved in the
previous thirty days.
[5] On March 17, 2019, the trial court granted the Petition, ordering that (1) HSD
and Strawhorn be assessed a fifty-dollar-per-day fine dating to September 15,
2018, for a then-total of $7900.00; (2) HSD and Strawhorn pay $1000.00 in
attorney’s fees to the Town’s law firm; and (3) the Town was authorized to take
any and all actions necessary to abate the nuisance, with the costs to be assessed
to HSD and Strawhorn.
Discussion and Decision
[6] As an initial matter, the Town suggests in a footnote that Strawhorn’s appeal
should be dismissed as untimely filed. Strawhorn insists that his notice of
appeal was, in fact, timely filed. While it appears possible that Strawhorn’s
notice of appeal was untimely filed, we choose to disregard any procedural
anomaly and reach the merits of his appeal.
Indiana’s rules and precedent give reviewing courts authority “to
deviate from the exact strictures” of the appellate rules when
justice requires. In re Howell, 9 N.E.3d 145, 145 (Ind. 2014).
“Although our procedural rules are extremely important … they
are merely a means for achieving the ultimate end of orderly and
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speedy justice.” American States Ins. Co. v. State ex rel. Jennings, 258
Ind. 637, 640, 283 N.E.2d 529, 531 (1972). See also App. R. 1
(“The Court may, upon the motion of a party or the Court’s own
motion, permit deviation from these Rules.”). This discretionary
authority over the appellate rules allows us to achieve our
preference for “decid[ing] cases on their merits rather than
dismissing them on procedural grounds.” Adoption of O.R., 16
N.E.3d at 972 (citation omitted). See also In re Adoption of T.L., 4
N.E.3d 658, 661 n.2 (Ind. 2014) (considering merits after denying
appellees’ motion to dismiss based on procedural defect)[.]
In re D.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574, 579 (Ind. 2017). So, given
our oft-stated preference to decide cases on the merits and in the interest of
avoiding probable additional litigation in this case, we decline the Town’s
invitation to dismiss Strawhorn’s appeal.
[7] That said, where, as here, the trial court sua sponte enters specific findings of fact
and conclusions, we review its findings and conclusions to determine whether
the evidence supports the findings, and whether the findings support the
judgment. Fowler v. Perry, 830 N.E.2d 97, 102 (Ind. Ct. App. 2005). We will set
aside the trial court’s findings and conclusions only if they are clearly
erroneous. Id. A judgment is clearly erroneous when a review of the record
leaves us with a firm conviction that a mistake had been made. Id. We neither
reweigh the evidence nor assess the witnesses’ credibility, and we consider only
the evidence most favorable to the judgment. Id. Moreover, findings made sua
sponte control only the issues that they cover, while a general judgment will
control the issues about which there are no findings. Id. “A general judgment
entered with findings will be affirmed if it can be sustained on any legal theory
supported by the evidence.” Id.Court of Appeals of Indiana | Memorandum Decision 19A-MI-893 | April 20, 2020 Page 5 of 11
[8] It is well-established under Indiana law that a municipality has the inherent
power to protect the comfort, health, convenience, good order, and general
welfare of its inhabitants. See, e.g., Crawfordsville v. Braden, 130 Ind 149, 28 N.E.
849, 851 (Ind. 1891). Moreover, a municipality may bring a civil action if a
person violates an ordinance regulating or prohibiting a condition or use of
property. Ind. Code § 36-1-6-4(a).
[9] Indiana Code section 32-30-6-6 defines a nuisance as follows:
Whatever is:
1. injurious to health;
2. indecent;
3. offensive to the senses; or
4. 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.
Indiana Code section 32-30-6-7(b) further authorizes an action to abate or
enjoin a nuisance to be brought by an attorney of any city or town in which a
nuisance exists. The Town adopted the Nuisance Ordinance in December of
2017, to protect the health, safety, welfare and property values of Hillsboro
residents and property. Appellee’s App. Vol. II. pp. 13-31. The Nuisance
Ordinance and Indiana Code section 32-30-6-6 form the basis for the Petition.
[10] Generally, it is in the purview of the trial court to determine whether, under all
of the facts and circumstances, the conditions constitute a nuisance within the
provisions of the statute. Davoust v. Mitchell, 146 Ind. App. 536, 541, 27 N.E.2d
332, 335 (1970). In determining if nuisance conditions exist, the relevant
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inquiry is whether the thing complained of produces a condition as in the
judgment of reasonable persons is naturally productive of actual physical
discomfort to persons of ordinary sensibility, tastes, and habits. Wendt v.
Kerkhof, 594 N.E.2d 795, 797 (Ind. Ct. App. 1992), trans. denied.
I. Whether the Trial Court’s Judgment is
Supported by Sufficient Evidence
A. Public or Private Nuisance
[11] Strawhorn contends that the Town established, at most, that he maintained a
private nuisance, which he argues is not covered by Indiana Code section 32-
30-6-6 or the Nuisance Ordinance. “A public nuisance affects an entire
neighborhood or community, while a private nuisance affects only one
individual or a determinate number of people.” Scheckel v. NLI, Inc., 953
N.E.2d 133, 138 (Ind. Ct. App. 2011). Strawhorn, however, did not make this
argument in the trial court and so has waived it for appellate review. It is well-
settled that “[f]ailure to raise an issue before the trial court will result in waiver
of that issue.” Heaphy v. Ogle, 896 N.E.2d 551, 555 (Ind. Ct. App. 2008). In
any event, Indiana Code section 32-30-6-6 does not draw any distinction
between public and private nuisance, and the allegations regarding the
condition of the Property easily qualify as affecting the neighborhood or
community, if true. Visible overgrowth and the presence of trash and multiple
unplated vehicles are not harms that are limited to one individual or a
determinate number of persons when they can be seen by anybody passing the
Property. See Miller v. Town of Syracuse, 168 Ind. 230, 80 N.E. 411, 411 (1907)
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(“Anything offensive to the sight, smell, or hearing, erected or carried on in or
near a public place where the people dwell or pass, or have the right to pass, to
their annoyance, is a nuisance at common law.”).
B. Sufficiency of the Evidence
[12] Strawhorn essentially argues that the Town failed to establish that he was in
violation of the Nuisance Ordinance because he had abated any nuisance by the
time of the hearing. We disagree, concluding that the Town produced sufficient
evidence that the conditions on the Property violated the Nuisance Ordinance
throughout this proceeding below.
[13] Deputy Clark testified that on September 15, 2018, the condition of the
Property was that it was overgrown with weeds and shrubs and there were two
cars in the driveway, along with car parts and broken toys and bicycles. Deputy
Clark further testified that there were additional cars in the back which were not
visible because of weeds. At that time, Strawhorn was issued the Notice, in
which he was notified that he was in violation of provisions in the Nuisance
Ordinance relating to the trash, overgrown vegetation, and abandoned vehicles
Indiana Code section 9-13-2-1 provides, in part, that an abandoned vehicle
includes “[a] vehicle that is at least three (3) model years old, is mechanically
inoperable, and is left on private property continuously in a location visible
from public property for more than 20 days.”
[14] Even if the overgrowth and some of the trash had been abated by the time of the
hearing on February 21, 2019, Strawhorn himself testified that (1) there were
still three vehicles on the Property that were not plated and had not been moved
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in the last thirty days and (2) there was still trash in the driveway. Moreover,
the vehicles in the backyard were now visible from public property due to the
clearing of the overgrowth. The Town admitted photographic evidence of the
vehicles and trash that remained on the Property as of February 19, 2019,
which trash included several broken bicycles and a large trash container in the
driveway. Moyer testified that the conditions at the Property still constituted a
danger to public health and safety and were potentially injurious to public
health. We conclude that the Town produced evidence sufficient to sustain a
finding that Strawhorn was maintaining a nuisance on the Property at all times.
[15] Strawhorn points to evidence that he had plated some of his vehicles and
removed some of the trash. Even if this evidence were believed, it fails to
account for evidence of other vehicles that had not been plated and trash that
was still visible in the driveway as of the final hearing. Strawhorn’s argument is
an invitation to reweigh the evidence, which we will not do. See Fowler, 830
N.E.2d at 102.
II. Whether Enforcement of the Nuisance Ordinance
Violates Strawhorn’s Due Process Rights
[16] Strawhorn contends that the enforcement of the Nuisance Ordinance against
him violates his constitutional due process rights. Strawhorn’s specific
arguments seem to be that he has valid reasons for having unplated vehicles and
broken bicycles on the Property and that the Nuisance Ordinance is
inconsistently enforced, with him being singled out while other properties in the
Town are ignored.
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[17] Ordinances, like statutes, are presumed to be constitutional. Gul v. City of
Bloomington, 22 N.E.3d 853, 862 (Ind. Ct. App 2014), trans. denied. If
reasonably avoidable, we will not attribute unconstitutional intention to the
drafters of an ordinance. Price v. State, 622 N.E.2d 954, 963 (Ind. 1993). That
said, Strawhorn has failed to make a cogent argument to support this claim.
Indiana Appellate Rule 46(A)(8) provides, in part, as follows:
(a) The argument must contain the contentions of the
appellant on the issues presented, supported by cogent
reasoning. Each contention must be supported by citations to
the authorities, statutes, and the Appendix or parts of the
Record on Appeal relied on, in accordance with Rule 22.
(b) The argument must include for each issue a concise
statement of the applicable standard of review; this statement
may appear in the discussion of each issue or under a separate
heading placed before the discussion of the issues. In
addition, the argument must include a brief statement of the
procedural and substantive facts necessary for consideration
of the issues presented on appeal, including a statement of
how the issues relevant to the appeal were raised and resolved
by any Administrative Agency or trial court.
[18] Strawhorn cites to the older and current versions of the Nuisance Ordinance but
cites to no case or constitutional provision to support this argument or provide
us with a standard of review. While we will not develop a constitutional
argument on Strawhorn’s behalf, we will briefly address his specific claims
nonetheless.
[19] Strawhorn maintains that he has legitimate reasons for keeping so many
vehicles and broken bicycles on the Property, i.e., he keeps the vehicles in case
one of his grandchildren needs one at some point, and one of those
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grandchildren enjoys tinkering with the bicycles. The reasons he cites have no
evidentiary support in the record, however, and, even if they did, Strawhorn
does not explain why the trial court would have been obligated to credit them.
Strawhorn also contends that the Nuisance Ordinance is being unfairly
enforced against him while the Town is ignoring worse transgressors. Deputy
Clark testified, however, that the Town had issued similar citations to other
properties. When questioned by Strawhorn about a property “at the corner of
Cherry and Park” that was allegedly “nothing but weeds and trees[,]” Deputy
Clark did acknowledge that he had never issued a citation to it. Tr. Vol. II p. 8.
That said, even if we assume that Strawhorn’s questioning paints an accurate
picture of the condition of that property, there is no indication that it held
anything like the multiple unplated vehicles and trash observed on the Property.
Because Strawhorn’s arguments are supported by neither the law nor the facts,
he has failed to establish that the Town’s enforcement of the Nuisance
Ordinance against him violated his due process rights.
[20] The judgment of the trial court is affirmed.
Robb, J., and Altice, J., concur.
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