                                                                             FILED
                                                                         Aug 15 2019, 8:34 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Craig E. Beougher                                          Deborah L. Law
Eric C. Welch                                              Office of Corporation Counsel
Welch & Company, LLC                                       Indianapolis, Indiana
Muncie, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Indy Diamond, LLC,                                         August 15, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-OV-2552
        v.                                                 Appeal from the Marion Superior
                                                           Court
The City of Indianapolis,                                  The Honorable Carol J. Orbison,
Appellee-Plaintiff                                         Senior Judge
                                                           Trial Court Cause No.
                                                           49D04-1311-OV-42176



Crone, Judge.




Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019                              Page 1 of 19
                                                 Case Summary
[1]   Indy Diamond, LLC (“Indy Diamond”),1 is the owner of a large parcel of

      property located in Marion County (“the Real Estate”). The Real Estate

      consists of a severely dilapidated former apartment complex that is currently

      vacant aside from criminals and squatters who frequent the property. After

      years of fighting with the City of Indianapolis (“the City”) over numerous

      municipal code violations, the parties entered into an agreed judgment that was

      adopted by the trial court, whereby Indy Diamond agreed to secure and

      maintain the Real Estate. Indy Diamond failed to do so, and the City filed a

      contempt petition. The trial court subsequently found Indy Diamond in

      contempt and, as a sanction, ordered Indy Diamond to demolish the buildings

      located on the Real Estate.


[2]   On appeal, Indy Diamond contends that the trial court abused its discretion in

      ordering demolition as a contempt sanction. Indy Diamond further asserts that

      it has been denied due process and that the trial judge was personally biased

      against it. Finding neither an abuse of discretion nor a due process violation,

      and concluding that there is no evidence of personal bias, we affirm.


                                     Facts and Procedural History
[3]   The convoluted history of this case began in November 2013, when the City

      filed a complaint for injunction, fines, and damages against Indy Diamond



      1
          The record indicates that Indy Diamond is a foreign limited liability company based in England.

      Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019                               Page 2 of 19
      alleging that Indy Diamond was maintaining a public nuisance in violation of

      Indiana statutory law and municipal codes. Specifically, the City alleged that

      Indy Diamond was neglecting the Real Estate, commonly known as Oaktree

      Apartments, and that the Real Estate’s deteriorated condition “unreasonably

      harms the City and citizens it serves and represents by contributing to the urban

      blight, depressing property values, discouraging development, imperiling the

      public, and consuming substantial public resources.” Appellee’s App. Vol. 2 at

      2.2 The City alleged that from July 26, 2012, to August 27, 2013, there had

      been at least 372 police runs to the Real Estate and 125 police reports for

      criminal activity including crimes of rape, arson, domestic battery, public

      intoxication, child abduction, child abuse, burglary, armed robbery, aggravated

      assault, vandalism, intimidation, and trespassing. The City further alleged that,

      during the same time period, there had been fifty Department of Code

      Enforcement and Marion County Public Health Department cases opened

      against Indy Diamond and at least 146 inspections conducted of and relating to

      the poor condition of the Real Estate.


[4]   In January 2014, the Health and Hospital Corporation of Marion County filed

      a complaint for injunction and fine against Indy Diamond. Following a

      hearing, Indy Diamond was ordered to vacate and board all occupied

      apartment units located on the Real Estate. Consequently, in February 2014,

      the City filed a request for preliminary injunction to prohibit Indy Diamond


      2
        The Real Estate, located on Pinehurst Drive in Indianapolis, consists of approximately nineteen acres of
      land with at least twenty-six buildings situated thereon.

      Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019                              Page 3 of 19
      from using the Real Estate for rental purposes and to require Indy Diamond to

      keep the property fully secured. Thereafter, following a hearing, the trial court

      granted the City’s request, entered a permanent injunction, and, in the City’s

      words, the Real Estate was essentially “condemned.” Appellee’s Br. at 11.3


[5]   After the condition of the Real Estate deteriorated further, in August 2015, the

      City filed an “Emergency Motion for Order Compelling Maintenance of the

      Property.” Appellee’s App. Vol. 2 at 25. The City’s motion alleged that

      although Indy Diamond had removed all residents from the Real Estate, it had

      since failed to maintain the Real Estate in accordance with the municipal code.

      The allegations of code violations included: (1) the grass and weeds exceeded

      twelve inches in height; (2) doors and windows on the buildings were not

      equipped with proper hardware for locking to prevent unauthorized entry; (3)

      there were several broken windows; and (4) junk, trash, and debris littered the

      Real Estate. The City also alleged that local police and fire officials had been

      forced to respond to and address significant public safety concerns at the Real

      Estate, including two fires on the property and numerous squatters living inside

      unsafe structures. The City’s motion included photographs of the poor

      conditions of the Real Estate as well as emails from the City to Indy Diamond

      urging its attention to these matters. Following a hearing, the trial court

      entered an order compelling Indy Diamond to secure the Real Estate in




      3
        The trial court found that at least two of the buildings on the property were wholly unfit for habitation due
      to extensive fire damage. Other buildings had broken windows, mold, and no water service. As of February
      2014, only one unit out of 348 was occupied.

      Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019                                Page 4 of 19
      accordance with municipal code boarding standards, maintain the Real Estate

      in a safe and sanitary condition, and to remove any and all unauthorized

      persons found on the Real Estate. The court set the matter for a September

      2015 compliance hearing.


[6]   A September compliance hearing was held, after which the trial court found

      that the evidence presented established that Indy Diamond had failed, without

      good cause, to comply with the court’s previous order. Accordingly, the trial

      court assessed a $15,000 fine against Indy Diamond, and again ordered Indy

      Diamond to comply with the previous order to secure and maintain the Real

      Estate. The matter was set for another compliance hearing on October 7, 2015.

      Both parties appeared by counsel at that hearing and stipulated that the Real

      Estate was not in compliance with the court’s order. The court gave Indy

      Diamond two additional weeks to bring the property into compliance. At the

      next compliance hearing, the trial court found that the evidence presented

      established that Indy Diamond had again failed, without good cause, to comply

      with the court’s order. The trial court assessed a $30,000 fine against Indy

      Diamond and ordered Indy Diamond to comply with the previous orders to

      secure and maintain the Real Estate. The matter was set for a December 2015

      compliance hearing, which was subsequently vacated by the parties for

      unknown reasons.


[7]   On July 15, 2016, the City filed a motion for pretrial conference on its original

      complaint. The City alleged that in both February 2016 and June 2016, it had

      tried to contact counsel for Indy Diamond but had received no response. The

      Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019      Page 5 of 19
      trial court set the matter for pretrial conference in August 2016, but the parties

      subsequently agreed to a continuance. In the interim, Indy Diamond agreed to

      secure all units by August 29, 2016, to establish a mowing schedule, and to

      mow the property before the conference. Another joint motion to continue was

      filed in September 2016, and the pretrial conference was reset to December

      2016, with a trial date set for January 18, 2017.


[8]   Rather than proceed to trial, the parties filed an agreed judgment and order

      (“Agreed Judgment Order”) with the trial court on December 21, 2016.

      Pursuant to the Agreed Judgment Order, Indy Diamond admitted to all alleged

      statutory and municipal code violations, agreed to pay a $10,000 fine and court

      costs, and agreed to comply with all prior orders of the court to secure and

      maintain the Real Estate. However, the condition of the Real Estate continued

      to deteriorate throughout 2017. Accordingly, on January 23, 2018, the City

      filed a verified petition for contempt alleging that Indy Diamond violated the

      Agreed Judgment Order. Specifically, the City alleged that Indy Diamond had

      failed to secure and board the buildings on the Real Estate, remove trash and

      debris, and maintain the Real Estate in a safe and sanitary condition, as

      required by the Agreed Judgment Order. The City further alleged that Indy

      Diamond had unpaid fines and court costs totaling $10,133. The petition for

      contempt also alleged that the City, through its Department of Business and

      Neighborhood Services, had repeatedly inspected the property and issued

      numerous board orders, but had been forced to spend taxpayer funds to




      Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019       Page 6 of 19
       continually board and reboard the structures on the Real Estate due to Indy

       Diamond’s failures.


[9]    The trial court held a hearing on the City’s contempt petition on February 26,

       2018. During the hearing, the City presented seventy-eight photographs

       depicting the condition of the Real Estate. At the conclusion of the hearing,

       counsel for the City made an oral request for the court to issue a demolition

       order for the buildings on the Real Estate. Thereafter, on March 2, 2018, the

       trial court entered its order concluding that based on the evidence presented at

       the hearing, the City met its burden to show that Indy Diamond was in

       violation of the Agreed Judgment Order. Accordingly, the trial court entered

       an order for Indy Diamond to demolish all structures on the Real Estate within

       sixty days.4 The trial court further ordered that Indy Diamond thereafter

       maintain the vacant Real Estate in accordance with the municipal code, so long

       as Indy Diamond retains an ownership interest in the Real Estate.


[10]   Indy Diamond filed a motion to correct error on March 30, 2018, arguing that

       the City’s written contempt petition did not request an order of demolition, and

       therefore the court’s order violated Indy Diamond’s due process rights. Indy

       Diamond further argued that the civil contempt remedy of demolition was

       improperly punitive rather than coercive or remedial in nature. Accordingly,

       Indy Diamond requested that the court’s demolition order be vacated.




       4
        The trial court made clear on the record, and in its order, that it would grant a reasonable extension if Indy
       Diamond needed more time to accomplish the demolition process.

       Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019                                Page 7 of 19
[11]   On April 10, 2018, the trial court granted Indy Diamond’s motion to correct

       error and vacated the demolition order. The City subsequently filed an

       emergency request for a hearing for clarification of the court’s order. The

       matter was set for a hearing on April 25, 2018. During the hearing, the trial

       court acknowledged the due process concerns with its original demolition order

       and clarified that it intended to modify the order to give Indy Diamond an

       additional opportunity to be heard on the issue and the chance to purge itself of

       the sanction. At the conclusion of the hearing, the trial court issued an order

       from the bench reinstating the demolition order but holding it in abeyance until

       June 25, 2018, sixty days from the court’s ruling. The trial court’s subsequently

       issued written order provided in relevant part as follows:


               IT IS FURTHER ORDERED that Defendants shall be entitled
               to relief from the Order to Demolish issued March 1, 2018
               provided either of the following [has] occurred:

               1) There has been substantial progress made toward the sale of
               the property commonly known as 9012 Pinehurst Drive North,
               Indianapolis IN. Substantial progress shall mean a fully-executed
               final purchase agreement along with an established timeframe for
               the closing of the sale of the property; or

               2) The Defendants present evidence they are in compliance with
               the Agreed Judgment Order dated December 21, 2016.


       Appellant’s App. Vol. 2 at 59.


[12]   The parties appeared for a compliance hearing on June 25, 2018. The City

       presented evidence that the condition of the Real Estate had further deteriorated


       Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019      Page 8 of 19
       since the prior hearing and was still not in compliance with the Agreed

       Judgment Order. Although Indy Diamond presented evidence of a prospective

       buyer and a signed purchase agreement for the Real Estate, the agreement

       included conditions and contingencies on the sale by the prospective buyer,

       including that Indy Diamond had to get the demolition order “officially

       removed” by the end of the inspection period or the buyer refused to proceed.

       Id. at 71. Based upon the evidence presented, on July 13, 2018, the trial court

       issued an order lifting the stay on the demolition order. The court ordered that

       Indy Diamond “shall, by August 30, 2018, either close on the sale of the

       property OR raze the structures at the Real Estate[,]” and “bear all expenses

       associated with the permitting and demolition process.” Id. at 72-73. Indy

       Diamond filed a second motion to correct error, which was denied by the trial

       court. This appeal ensued.


                                       Discussion and Decision
[13]   On appeal, Indy Diamond does not challenge the trial court’s original

       determination that it was in contempt of the Agreed Judgment Order. Instead,

       Indy Diamond argues that the trial court abused its discretion in denying its

       second motion to correct error because, according to Indy Diamond, the trial

       court’s demolition order is an impermissible sanction for civil contempt. Indy

       Diamond additionally argues that it has been denied due process and that the

       trial judge was personally biased against it. We disagree on all counts.


[14]   Trial courts have broad discretion to determine whether they will grant or deny

       a motion to correct error. Luxury Townhomes, LLC v. McKinley Props., Inc., 992
       Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019        Page 9 of 19
       N.E.2d 810, 815 (Ind. Ct. App. 2013), trans. denied. An abuse of that discretion

       occurs if the trial court’s decision is against the logic and effect of the facts and

       circumstances before the court, or the reasonable inferences therefrom. Sanders

       v. Sanders, 105 N.E.3d 1102, 1106 (Ind. Ct. App. 2018). The trial court’s

       decision comes to this Court cloaked in a presumption of correctness, and the

       appellant has the burden of proving that the trial court abused its discretion.

       Jones v. Jones, 866 N.E.2d 812, 814 (Ind. Ct. App. 2007). We will neither

       reweigh the evidence nor judge the credibility of witnesses. Id.


            Section 1 – The trial court did not abuse its discretion in
              ordering demolition as a contempt sanction for Indy
             Diamond’s violation of the Agreed Judgment Order.
[15]   As with a motion to correct error, we review the trial court’s ruling on a

       contempt petition for an abuse of discretion. Mitchell v. Mitchell, 871 N.E.2d

       390, 394 (Ind. Ct. App. 2007). Accordingly, we will affirm unless, after

       reviewing the record, we conclude that the trial court’s decision is against the

       logic and circumstances before it, and we have a firm and definite belief that a

       mistake has been made by the trial court. Id. “Contempt of court involves

       disobedience of a court which undermines the court’s authority, justice, and

       dignity.” S.W. ex rel. Wesolowski v. Kurtic, 950 N.E.2d 19, 21-22 (Ind. Ct. App.

       2011) (citation omitted). Contempt falls into two categories—direct and

       indirect. Id. Whereas direct contempt involves actions occurring near the court

       and of which the court has personal knowledge, indirect contempt involves

       actions outside the court’s presence and personal knowledge. Id. A person who


       Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019         Page 10 of 19
       willfully disobeys a lawfully issued court order is guilty of indirect contempt.

       Ind. Code § 34-47-3-1.


[16]   A party who has been injured or damaged by the failure of another person to

       conform to a court order may seek a finding of contempt. Kurtic, 950 N.E.2d at

       22. Once a party is found in contempt, the trial court has the inherent authority

       to fashion an appropriate contempt sanction that is “coercive and remedial in

       nature.” Meyer v. Wolvos, 707 N.E.2d 1029, 1031 (Ind. Ct. App. 1999), trans.

       denied. In other words, when a court exercises its civil contempt power—as

       opposed to its criminal contempt power—the power is not to be used in a

       primarily punitive fashion, but instead to “coerce action for the benefit of the

       aggrieved party.” In re Paternity of M.P.M.W., 908 N.E.2d 1205, 1209 (Ind. Ct.

       App. 2009).


[17]   Indy Diamond asserts that demolition is an inappropriate civil contempt

       sanction because it is aimed solely at punishing Indy Diamond. We disagree

       and conclude instead that the trial court’s demolition order is primarily

       remedial and coercive in nature rather than punitive. See Moore v. Ferguson, 680

       N.E.2d 862, 866 (Ind. Ct. App. 1997) (recognizing that a civil contempt

       sanction may still be upheld even if it has “incidental punitive aspects”), trans.

       denied. Based upon our thorough review of the record, there is no question that

       the trial court’s demolition order, as modified by the trial court’s June 12, 2018

       order on the City’s motion to clarify, is primarily designed to provide a remedy

       for Indy Diamond’s repeated failures to comply with the Agreed Judgment

       Order to secure and maintain the Real Estate. This sanction is both remedial

       Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019       Page 11 of 19
       and coercive because it was imposed to terminate Indy Diamond’s continuing

       contempt of court and to coerce Indy Diamond to perform acts within its

       immediate power to perform, namely to either bring the Real Estate into

       compliance with the Agreed Judgment Order or make substantial progress

       toward the sale of the Real Estate. See K.L.N. v. State, 881 N.E.2d 39, 42 (Ind.

       Ct. App. 2008) (observing that unlike punitive sanctions that punish a person’s

       failure to perform a past act, remedial sanctions coerce performance of an act

       that is within the person’s immediate power to perform) (citation omitted).

       Contrary to Indy Diamond’s assertions, the trial court’s modified demolition

       order constituted a primarily remedial and coercive sanction, and therefore it

       was not an inappropriate sanction for civil contempt.5


[18]   Where, as here, a court exercises its inherent civil contempt power and fashions

       a coercive contempt sanction, we have typically required that there be an

       opportunity for the contemnor to purge himself or herself of contempt. Moore,

       680 N.E.2d at 865-66; see Ind. Code § 34-47-3-5 (providing that the “court shall,

       on proper showing … give the defendant a reasonable and just opportunity to

       be purged of the contempt.”). For example, where the trial court imposes a

       sanction of incarceration, the incarceration order may be “conditioned on the

       payment of money or the accomplishment of a single task.” M.P.M.W., 908



       5
         Because we find that the demolition order was within the trial court’s inherent contempt powers, we need
       not address Indy Diamond’s assertion that the trial court was without statutory authority to order demolition
       as part of an ordinance enforcement action absent a specific motion by the City and a hearing. See Ind. Code
       § 36-1-6-4 (listing eleven actions a trial court may take, including ordering a structure demolished, as part of
       an ordinance enforcement action). We similarly decline to address Indy Diamond’s inapposite assertion that
       the equitable doctrine of unclean hands should apply in this case.

       Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019                               Page 12 of 19
       N.E.2d at 1210. In this sense, it can be said that, because of the purge

       condition, the contemnor always carries the “keys to the jail” in his or her

       pocket. Duemling v. Fort Wayne Cmty. Concerts, Inc., 243 Ind. 521, 526, 188

       N.E.2d 274, 277 (1963).6


[19]   As noted above, the trial court’s modified demolition order gave Indy Diamond

       two different avenues to purge itself of contempt: (1) comply with the Agreed

       Judgment Order; or (2) prove to the court that there had been substantial

       progress made toward the sale of the Real Estate. Indy Diamond presented no

       evidence that it had, in fact, complied with the Agreed Judgment Order. Indy

       Diamond contends, however, that it did provide “clear evidence” to the trial

       court that substantial progress had been made toward the sale of the Real

       Estate. Appellant’s Br. at 18. However, the trial court was not so convinced.

       Indeed, based upon the testimony and the evidence, the trial court determined

       that Indy Diamond had not proven that it had made substantial progress

       toward the sale of the Real Estate. Specifically, the purchase agreement

       submitted to the trial court indicated that the prospective buyer had imposed

       conditions and contingencies on any sale, including a requirement that the

       demolition order be lifted prior to the end of the inspection period. During



       6
         Our supreme court has observed that the “purge” portion of the contempt statute has typically applied only
       to cases where the trial court has ordered jail time to coerce action by the contemnor. Reynolds v. Reynolds, 64
       N.E.3d 829, 835 (Ind. 2016). “This is likely because jail time is generally punitive in nature and civil
       contempt orders avoid punishing the contemnor by allowing the party to be purged of contempt.” Id.
       However, the Reynolds court specifically noted, “This is not to say that the purge portion of the statute could
       never apply in the absence of jail time.” Id. at n.5. While no jail time was ordered here, to the extent the
       demolition order can be perceived as incidentally punitive in nature, the trial court properly allowed Indy
       Diamond the opportunity to purge itself of contempt.

       Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019                                Page 13 of 19
       cross-examination of one of Indy Diamond’s witnesses, the City further

       questioned the feasibility of this alleged buyer actually following through with a

       sale, indicating to the trial court that “we’ve heard this song and dance before,”

       referring to Indy Diamond’s long history of claiming to “almost” have the

       property sold. Tr. Vol. 2. at 104, 110. The determination that substantial

       progress had not been made toward the actual sale of the Real Estate was the

       trial court’s prerogative, and we will not reweigh the evidence or reassess

       credibility on appeal. The trial court did not abuse its discretion in determining

       that Indy Diamond failed to purge itself of contempt.


          Section 2 – Indy Diamond has not been denied due process.
[20]   Indy Diamond maintains that it has been denied due process in this matter. As

       a general matter, alleged contemnors are guaranteed certain due process and

       procedural rights. Reynolds v. Reynolds, 64 N.E.3d 829, 833 (Ind. 2016). The

       contempt sanction that is the subject of this appeal was based upon an

       allegation of indirect contempt because the contemptuous actions at issue took

       place away from the courtroom and outside the personal knowledge of the trial

       court. An indirect contempt requires an array of due process protections,

       including notice and the opportunity to be heard. In re Nasser, 644 N.E.2d 93,

       95 (Ind. 1994); see Ind. Code § 34-47-3-5 (specifying the notice requirements of a

       rule to show cause).


[21]   Indy Diamond argues that because the City never filed a “Motion to Demolish”

       or specifically requested a demolition order as part of its contempt petition,

       Indy Diamond was somehow not on notice that a demolition sanction was
       Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019      Page 14 of 19
       possible and thus it has been denied an opportunity to be heard in a meaningful

       manner on the issue.7 We find Indy Diamond’s argument disingenuous.


[22]   Indeed, Indy Diamond made this same due process argument to the trial court

       during the April 2018 hearing on the City’s motion for clarification. The trial

       court acknowledged the due process concerns with its original demolition order

       and stated on the record that it recognized the need to attach purge conditions

       to its contempt sanction and to allow Indy Diamond an additional opportunity

       to be heard on the demolition issue. Counsel for Indy Diamond made the

       following recommendation to the trial court:


                My recommendation to the Court would be … reset this for sixty
                days. Our client [is] on notice that the City is requesting demolition.
                My client then will have sixty days to present to the Court, uh,
                documentation; either a signed purchase agreement, proof of
                funding, everything else we need to show the Court that our
                clients our serious about moving this forward…. I think that will
                resolve all issues. So, my client then has fair notice that demolition is
                on the table…. So, sixty to – set it out sixty days. We’ll have time



       7
         In a somewhat related argument, Indy Diamond also asserts that the demolition order violates Indiana
       Trial Rule 15(B) because the issue of demolition was neither raised in the pleadings nor tried by express or
       implied consent of the parties. See Ind. Trial Rule 15(B) (providing that “[w]hen issues not raised by the
       pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they
       had been raised in the pleadings” and that an “amendment of the pleadings may be necessary to cause them
       to conform to the evidence.”) As we will explain more fully, demolition was not a new “issue” that needed to
       be tried by express or implied consent or to which an amendment to the City’s original petition to conform
       the evidence would have been necessary. Rather, the demolition order is a civil contempt remedy fashioned
       by the trial court within its inherent discretion in contempt matters. Moreover, Indy Diamond has never
       objected to the City’s oral request for demolition on grounds that the request violated Indiana Trial Rule
       15(B). Thus, Indy Diamond has waived this argument on appeal. See Van Winkle v. Nash, 761 N.E.2d 856,
       859 (Ind. Ct. App. 2002) (failure to raise an issue before the trial court results in waiver of that issue on
       appeal).



       Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019                                 Page 15 of 19
                we can impress upon our client, guys, it looks like this building is
                coming down unless, one, we convince the Court that it
                shouldn’t, or two, we’ve got valid proof showing the Court that
                we’ve got real dollars coming into the community. That would
                be my recommendation.


       Tr. Vol. 2 at 63 (emphases added). The trial court did precisely what Indy

       Diamond’s counsel requested: it entered an order holding the original

       demolition order in abeyance8 and reset the matter for another evidentiary

       hearing. A subsequent hearing was held, during which Indy Diamond

       presented evidence and testimony specifically regarding the demolition issue.

       Indy Diamond has been afforded more than an adequate opportunity to be

       heard. There has been no denial of due process.


             Section 3 – There is no evidence that the trial judge was
                    personally biased against Indy Diamond.
[23]   Finally, we will briefly address Indy Diamond’s assertion that we should

       reverse the trial court’s demolition order because the trial judge was personally

       biased against Indy Diamond. The law presumes that a trial judge is unbiased.

       Richardson v. Richardson, 34 N.E.3d 696, 703-04 (Ind. Ct. App. 2015). To

       overcome that presumption, the party asserting bias must establish that the trial

       judge has a personal prejudice for or against a party. Id. “Adverse rulings and

       findings by the trial judge do not constitute bias per se. Instead, prejudice must



       8
         We note that Indy Diamond requested that the trial court set aside the original demolition order. The trial
       court declined to do so, and instead held the order in abeyance. This was eminently reasonable under the
       circumstances.

       Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019                              Page 16 of 19
       be shown by the judge’s trial conduct; it cannot be inferred from his [or her]

       subjective views.” Id. (citations omitted). Said differently, a party “must show

       that the trial judge’s action and demeanor crossed the barrier of impartiality and

       prejudiced” that party’s case. Id. (citing Flowers v. State, 738 N.E.2d 1051, 1061

       (Ind. 2000)).


[24]   Indy Diamond directs us to various statements and comments made by the trial

       judge on the record which it claims support a finding that the trial judge was

       personally biased against Indy Diamond. Among other things, Indy Diamond

       accuses the trial judge of injecting her personal feelings about the Real Estate, in

       commenting that she was “thoroughly disgusted” by the condition of the Real

       Estate, that she felt bad that “homeowners in proximity have to look at this

       dump,” and that she did not think she had “seen something this bad ever.”

       Appellant’s App. Vol. 3 at 49-50. Additionally, Indy Diamond complains that

       this particular trial judge had not been involved in the case from the beginning

       so that her comments illustrated a “clear personal bias” rather than views

       garnered based upon her involvement in the case itself. Appellant’s Br. at 27.


[25]   After reviewing the record, we conclude that Indy Diamond has failed to show

       that the trial judge’s actions or demeanor here were in any way improper or

       crossed the barrier of impartiality. In fact, there is absolutely no evidence of

       personal bias, and we find Indy Diamond’s accusation against this trial judge,

       which is essentially a claim that the judge violated the Indiana Code of Judicial




       Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019      Page 17 of 19
       Conduct,9 to be out of line. Simply put, Indy Diamond is attacking the integrity

       of this trial judge because she has issued a clear and strong sanction for Indy

       Diamond’s continual disregard for the court’s authority and its previous order

       attempting to abate this public nuisance. As far as the judge’s comments that

       may appear to reflect her personal opinion regarding the condition of the Real

       Estate, we observe that those comments were made in the context of contempt

       proceedings and were merely observations supported by the evidence. Such

       evidence included dozens upon dozens of photographs clearly depicting the

       deplorable condition of the Real Estate. Indy Diamond has not demonstrated

       that the trial judge was biased.


[26]   Pursuant to Indiana Appellate Rule 66(E), we have discretionary authority to

       assess damages, including appellate attorney’s fees, in the event an appeal is

       “permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness,

       or purpose of delay.” Tipton v. Estate of Hofmann, 118 N.E.3d 771, 777 (Ind. Ct.

       App. 2019). Although Indy Diamond’s claim of bias against the trial judge is,

       in our opinion, unfounded and meritless, we choose to exercise restraint and

       decline to assess appellate damages against Indy Diamond.




       9
         Indiana Judicial Conduct Canon 2 requires a judge to “perform the duties of judicial office impartially,
       competently, and diligently.” Judges must be “objective and open-minded.” Rule 2.2, cmt. 1. “A judge shall
       perform the duties of judicial office ... without bias or prejudice.” Rule 2.3(A). A judge shall disqualify
       himself or herself “in any proceeding in which the judge’s impartiality might reasonably be questioned,”
       including in circumstances when “the judge has a personal bias or prejudice concerning a party.” Rule
       2.11(A).

       Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019                            Page 18 of 19
[27]   In sum, Indy Diamond has not met its burden to demonstrate that the trial

       court abused its discretion in denying its second motion to correct error. The

       trial court had inherent authority to enter a demolition order as a sanction for

       Indy Diamond’s contempt, and Indy Diamond has been afforded ample due

       process in this matter. We affirm the trial court’s demolition order in all

       respects.


[28]   Affirmed.


       Bradford, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019     Page 19 of 19
