      MEMORANDUM DECISION
                                                                          FILED
      Pursuant to Ind. Appellate Rule 65(D), this                    Nov 23 2016, 8:42 am
      Memorandum Decision shall not be regarded as                        CLERK
      precedent or cited before any court except for the              Indiana Supreme Court
                                                                         Court of Appeals
      purpose of establishing the defense of res judicata,                 and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEES
      Craig Persinger                                          Megan B. Quirk
      Marion, Indiana                                          Muncie, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Rosina Keller,                                           November 23, 2016

      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               18A02-1601-MI-188
              v.                                               Appeal from the Delaware Circuit
                                                               Court.
                                                               The Honorable Marianne L.
      Gretchen Cheesman, as                                    Vorhees, Judge.
      Administrator of the City of                             Cause No. 18C01-1503-MI-11
      Muncie Unsafe Building Hearing
      Authority, and the City of
      Muncie,
      Appellees-Defendants.




      Friedlander, Senior Judge

[1]   Rosina Keller appeals the trial court’s grant of summary judgment in favor of

      Gretchen Cheesman, in her capacity as Administrator of the City of Muncie’s

      Unsafe Building Hearing Authority, and the City of Muncie. We affirm.


      Court of Appeals of Indiana | Memorandum Decision 18A02-1601-MI-188 | November 23, 2016   Page 1 of 7
[2]   James Conaster owned property in Muncie, Indiana, that contained a house

      and an outbuilding. Rodney Conaster (relationship to James Conaster

      unknown) complained to the Delaware County Health Department about the

      conditions of those structures. Appellant’s App. p. 33. On August 25, 2014, an

      inspector for the Department visited the property.


[3]   On August 26, 2014, the Department issued an order deeming the house to be

      “unfit for human habitation” due to disrepair and unspecified unsanitary

      conditions. Id. at 34. Conaster was ordered to fix the problems or vacate the

      buildings within five days. It appears from the record that Conaster was elderly

      and infirm, and he was removed from the property at some point during this

      period.


[4]   Also on August 26, 2014, the Building Commissioner for the City of Muncie

      issued an initial demolition order for the house and outbuilding, deeming them

      to be dangerous structures. The order stated that the house’s roof was in

      disrepair and the ceiling was falling in. Furthermore, the house’s wiring was in

      disrepair.


[5]   Meanwhile, Conaster was delinquent on property taxes. On October 15, 2014,

      Keller purchased the property at a tax sale. The Delaware County Auditor

      issued a Tax Sale Certificate to Keller. According to the Certificate, Keller

      would be “entitled to a deed for the tract of land so purchased as above

      described at the expiration of the redemption period (Thursday, October 15,




      Court of Appeals of Indiana | Memorandum Decision 18A02-1601-MI-188 | November 23, 2016   Page 2 of 7
      2015)” if the prior owner, Conaster, did not pay the back taxes during that

      period. Id. at 7.


[6]   On October 30, 2014, the City of Muncie issued a formal demolition order to

      Conaster. In the order, the City directed Conaster to demolish the house and

      outbuilding within forty-five days. The City further informed Conaster that the

      Unsafe Building Hearing Authority (the Authority) would hold a hearing on the

      demolition order on December 11, 2014. The City sent a copy of the letter to

      Keller.


[7]   The Authority held a hearing as scheduled on December 11, 2014. Conaster

      did not attend, but Keller attended and was recognized by the Authority as the

      “tax sale buyer” of the property. Id. at 45. Keller asserted that she wanted to

      rehabilitate the house but conceded she would not have the right to possess the

      property for thirteen months.


[8]   After the hearing, the Authority issued a “Record of Hearing.” Id. In the

      Record, the Authority both “affirmed” and “continued” the October 30, 2014

      demolition order, granting Keller “additional time to comply with the order.”

      Id. The Record instructed Keller to submit to the Authority within sixty days a

      schedule to repair the house and proof that she could afford $25,000 worth of

      repairs on the house. The Authority also suggested that Keller take steps to

      gain an immediate right of access to the property to make repairs. The

      Authority scheduled a follow-up hearing for February 12, 2015.




      Court of Appeals of Indiana | Memorandum Decision 18A02-1601-MI-188 | November 23, 2016   Page 3 of 7
[9]    At the February 12, 2015 hearing, Conaster did not attend, but Keller was

       present. She submitted a schedule to repair the property and a proposed

       budget, but she did not provide proof that she could afford to pay for $25,000

       worth of repairs. At the end of the hearing, the Authority issued another

       “Record of Hearing” in which the Authority affirmed the demolition order and

       the proposed timetable for destruction of the house and outbuilding. Id. The

       Authority declined to give Keller any additional time. The Record further

       indicated she was told “she could appeal [the] order within 10 calendar days.”

       Id.


[10]   On February 23, 2015, Keller filed a verified civil complaint against Gretchen

       Cheesman in her capacity as Administrator of the Authority, the City of

       Muncie, and James Conaster, asking the trial court to reverse the demolition

       order. Administrator Cheesman and the City of Muncie filed an answer

       generally denying Keller’s allegations.


[11]   Next, Administrator Cheesman and the City of Muncie filed a Motion for

       Summary Judgment and Dismissal of Complaint. Keller did not file a response

       to Cheesman and the City’s motion or designate any evidence in opposition to

       the motion. The court held oral argument, at which all parties other than

       Conaster appeared. After the hearing, the court granted the motion and

       dismissed Keller’s complaint in its entirety.


[12]   After the court granted the summary judgment motion, the City began to

       demolish the house and outbuilding using its own contractor. Keller filed a


       Court of Appeals of Indiana | Memorandum Decision 18A02-1601-MI-188 | November 23, 2016   Page 4 of 7
       motion to stay the demolition proceedings, and the court granted the motion.

       Next, Keller filed a motion to correct error, which the court denied. The City

       filed a motion to resume demolition, alleging that the property had been left in

       a dangerous state. The court granted the motion. This appeal followed.


[13]   Keller claims the trial court should not have granted summary judgment to

       Cheesman and the City. The party appealing from a summary judgment

       decision has the burden of persuading this court that the grant or denial of

       summary judgment was erroneous. Doe v. Adams, 53 N.E.3d 483 (Ind. Ct. App.

       2016), trans. denied.


[14]   We review summary judgment de novo, applying the same standard as the trial

       court. Hughley v. State, 15 N.E.3d 1000 (Ind. 2014). A party is entitled to

       summary judgment if the designated evidence shows that there is no genuine

       issue as to any material fact and the party is entitled to judgment as a matter of

       law. Ind. Trial Rule 56(C). The movant bears the initial burden of

       demonstrating the absence of any genuine issue of material fact. Hughley, 15

       N.E.3d 1000. If the movant successfully carries that burden, then the

       nonmovant must produce contrary evidence establishing an issue for the trier of

       fact. Id. We consider all evidence and inferences in the light most favorable to

       the nonmoving party. Smith v. Delta Tau Delta, 9 N.E.3d 154 (Ind. 2014).


[15]   Cheesman and the City argued to the trial court and argue on appeal that Keller

       failed to timely seek judicial review of the Authority’s final condemnation

       decision. The trial court granted summary judgment to Cheesman and the City


       Court of Appeals of Indiana | Memorandum Decision 18A02-1601-MI-188 | November 23, 2016   Page 5 of 7
       on a different ground, specifically that Keller lacked standing to challenge the

       demolition order.


[16]   We may affirm a grant of summary judgment on any theory supported by the

       evidence. Miller v. Danz, 36 N.E.3d 455 (Ind. 2015). Even if we assume for the

       purposes of this appeal that Keller has standing and timely filed her request for

       judicial review, there is another basis upon which to affirm the trial court’s

       judgment. Specifically, in their motion for summary judgment, Cheesman and

       the City argued that the February 12, 2015 order on demolition was appropriate

       because Keller “refused to comply with the requests of the Enforcement

       Authority in order for a possible rescission of the December 11, 2014

       Demolition Order.” Appellant’s App. p. 26.


[17]   Keller neither filed a response to Cheesman and the City’s motion for summary

       judgment nor designated any evidence in opposition to summary judgment. As

       a result, although we are mindful of our obligation to view the facts in the light

       most favorable to the nonmovant, we have only Cheesman and the City’s

       evidence before us. That evidence demonstrates that during the December 11,

       2014 hearing, the City’s employees pointed out that the house was in extremely

       poor condition and expressed doubt that it could be repaired without expending

       large sums of money. For that reason, the Authority directed Keller to provide

       proof within sixty days that she could pay $25,000 to rehabilitate the house.

       Keller failed to provide such proof at the February 12, 2015 hearing.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1601-MI-188 | November 23, 2016   Page 6 of 7
[18]   Appellate courts are obligated to scrutinize the record to ensure that the party

       that loses on summary judgment is not improperly prevented from having its

       day in court. Siner v. Kindred Hosp. Ltd. Partnership, 51 N.E.3d 1184 (Ind. 2016).

       A movant bears “a heavy factual burden” to establish “the absence of any

       genuine issue of material fact on at least one claim.” Id. at 1187. Even so,

       Keller failed to file a response to the summary judgment motion, and as a result

       Cheesman and the City demonstrated without contradiction that she failed to

       comply with conditions for further continuances of the demolition order. There

       was no genuine dispute of material fact, and the trial court did not err by

       granting summary judgment in favor of Cheesman and the City. See Brown v.

       Banta, 682 N.E.2d 582 (Ind. Ct. App. 1997) (affirming grant of summary

       judgment where nonmovant failed to timely respond, effectively resulting in the

       motion being unopposed), trans. denied.


[19]   For the reasons stated above, we affirm the judgment of the trial court.


[20]   Judgment affirmed.


       Baker, J., and Najam, J., concur.




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