                                                                     FILED
                                                                Jul 07 2017, 5:32 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEES
P. Jeffrey Schlesinger                                      John M. McCrum
Merrillville, Indiana                                       Robert J. Feldt
                                                            Kevin T. McNamara
                                                            Eichhorn & Eichhorn, LLP
                                                            Hammond, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Juan Vega,                                                  July 7, 2017
Appellant-Plaintiff,                                        Court of Appeals Case No.
                                                            45A03-1605-MI-1067
        v.                                                  Appeal from the Lake Superior
                                                            Court
City of Hammond and City of                                 The Honorable Calvin D.
Hammond Board of Public                                     Hawkins, Judge
Works and Safety,                                           Trial Court Cause No.
Appellees-Defendants.                                       45D02-1507-MI-9




Brown, Judge.




Court of Appeals of Indiana | Opinion 45A03-1605-MI-1067 | July 7, 2017                  Page 1 of 20
[1]   Juan Vega appeals the trial court’s order and ruling on his motion to correct

      errors in favor of the City of Hammond and the City of Hammond Board of

      Public Works and Safety (the “Board,” and collectively with the City of

      Hammond, the “Appellees”). Vega raises three issues, one of which we find

      dispositive and revise and restate as whether the court abused its discretion in

      granting the Appellees’ motion for directed verdict. We reverse and remand.


                                          Facts and Procedural History

[2]   Vega owns 4839 Elm Street, located in Hammond, Indiana. In 2012, Vega

      permitted Matt Saliga, an inspector for Hammond, to inspect the home, and

      afterward, on November 9, 2012, the City issued a Notice of Violation to Vega

      identifying various violations, such as the presence of unsafe conditions and the

      absence of proper building permits. The property was found to contain an

      unsafe second floor apartment lacking proper dwelling unit fire protection

      separation and proper fire resistance rating. The notice also stated that the

      property was contrary to Hammond zoning laws as to the number of units

      permitted in the district in question.1 The Notice stated that Vega must repair




      1
          The City’s Notice of Violation sent to Vega on November 9, 2012, stated the following:

               Your property at 4839 Elm St. has been inspected and found to be an UNSAFE BUILDING in
               violation of Indiana Code 36-7-9 et seq. and Sections 96, 150, 151, 156, and 158 of the
               Hammond City Code and International Residential [Code].
               This building is deemed unsafe based on the following:
               2nd Floor Apartment:
               International Residential Code §317.7, Dwelling Unit Separation, specifically dwelling units
               shall be separated from each other by wall and / or floor assemblies having not less than 1 –
               hour fire-resistance rating when tested in accordance with ASTM E 119.

      Court of Appeals of Indiana | Opinion 45A03-1605-MI-1067 | July 7, 2017                             Page 2 of 20
      or demolish the building to bring it into compliance within thirty days and that

      failure to do so would result in the Building Commissioner instituting legal

      proceedings against him.


[3]   A hearing before the Board on the Notice of Violation was originally set for

      November 29, 2012, but the hearing was continued multiple times, first to

      January 17, 2013, and then to March 14, 2013, as well as May 30, 2013, and

      August 8, 2013. At that point, the matter “kind of fell into the void for a while

      and nobody remembered anything about it.”2 Transcript at 121. Eventually, it

      was set for a hearing before the Board on September 18, 2014, and Vega and his

      counsel requested a continuance due to a scheduling conflict and because “there

      is incomplete discovery in this cause,” which was granted. Appellant’s

      Appendix Volume 2 at 51. On November 13, 2014, Saliga and Kris Kantar,




               Hammond Municipal Code §150.003 Building Permit Fees, specifically any person desiring to
               work on a building must obtain a building permit.
               Hammond Municipal Code §150.017 Contractor License, specifically no permit for plumbing
               work was issued and no license was obtained to do the work.
               Hammond Municipal Code §151.16, et seq., Electrical Inspection Department, specifically no
               permit was obtained to do the work.
               Hammond Municipal Code §151.34, et seq., License Required/Displayed, specifically no
               license was obtained to do the work.
               Hammond Municipal Code §158.01 Zoning, specifically pursuant to the City of Hammond
               Zoning Code, Ordinance o. 8514, Section 25.20, no request was made to the Appellees of
               Zoning to convert attic into two apartments.
               Hammond Municipal Code §156.10 Plumbing, specifically no license was obtained by the
               State’s Plumbing Commissioner to do the work.
               Hammond Municipal Code §156.20 Plumbing, specifically no plumbing permit was obtain [sic]
               to do the work.
      Appellant’s Appendix Volume 2 at 20-21.
      2
          Kris Kantar, the City’s counsel, made this observation at the Board’s November 13, 2014 hearing.


      Court of Appeals of Indiana | Opinion 45A03-1605-MI-1067 | July 7, 2017                           Page 3 of 20
      who was the City’s counsel, appeared before the Board and presented the City’s

      case, in which Saliga tendered his inspection file including findings,

      photographs and permit research for 4839 Elm Street. Neither Vega nor his

      counsel appeared at the hearing. The Board unanimously approved “the

      Findings regarding . . . 4839 Elm . . . .” Appellees’ Appendix at 122.


[4]   On December 10, 2014, Vega by counsel moved the Board to grant relief from

      the order of November 13, 2014, asserting that neither Vega nor counsel had

      been advised that the matter was set for hearing, and the Board vacated the

      order and reset a hearing for February 26, 2015. Vega’s counsel moved for a

      continuance of that hearing, and the matter was reset on the agreed date of

      April 30, 2015. “During that time [Vega] and Counsel for [Vega] were to

      obtain a second inspection and see if any repairs could be made to correct the

      issues with the property.” Id. at 43.


[5]   On April 29, 2015, Vega’s counsel sent a motion to reassign date and

      accompanying letter via fax to Kantar, the letter stating that Saliga had not yet

      performed a second inspection of the property. Id. at 29. The letter noted that

      counsel had not heard from Saliga “since the communications in early March,”

      that he had “put in a call to him Tuesday (4/28) but missed him by a couple-of-

      minutes,” and that he hoped that Saliga’s “schedule will permit us to coordinate

      something in May and, hopefully, have a ‘sit-down’ in June to see if it’s

      resolvable.” Id. The motion to reassign date also indicated that, if word was

      not received sooner, counsel would appear on April 30, 2015 “between 10-

      10:30 a.m. instead of 9:00 a.m. due to a medical appointment that counsel

      Court of Appeals of Indiana | Opinion 45A03-1605-MI-1067 | July 7, 2017   Page 4 of 20
      needs to attend and anticipates will be completed at approximately 10:00 a.m.”

      and requested that the matter be set for a hearing on the June calendar. Id. at

      28.


[6]   The Board held the hearing on April 30, 2015, and neither Vega nor counsel

      appeared. At the hearing, Kantar observed that Vega had requested a

      continuance, and the matter “has been continued at regular intervals for over

      two years” and “doesn’t ever seem to be going anywhere.” Transcript at 122-

      123.3 Saliga stated that “[h]e’s really made no attempt to schedule this.” Id. at

      123.4 Kantar recommended that the Board give Saliga a week to prepare an

      order, that the Board sign it, and that Vega could then “appeal it if he wants to.

      Enough is enough.” Id. The Board by motion approved that course of action.


[7]   On May 6, 2015, Vega’s counsel filed a motion for relief and request for hearing

      stating that Kantar agreed in their conversation on or about February 25, 2015,

      that she would communicate with Saliga and that Vega’s counsel should follow

      up with an email to Saliga, that counsel sent an email on March 3, 2015, and a

      fax on March 4, 2015, copying Kantar, that counsel did not receive a reply, and

      that counsel moved for a continuance as the hearing date approached. The

      letter to Saliga was attached to the motion as Exhibit 1. The motion also

      indicated that, on the date of the hearing, following his medical procedure and




      3
       The transcript from the judicial review hearing contains a transcription of the Board hearings, as recordings
      of those hearings were played for the court at the review hearing.
      4
          The transcript identifies the speaker as “Male Voice 1.”


      Court of Appeals of Indiana | Opinion 45A03-1605-MI-1067 | July 7, 2017                           Page 5 of 20
while en route to City Hall, counsel was advised that the meeting had

adjourned. On May 7, 2015, the Board entered its Finding of Fact and

Decision ordering Vega to remove the second floor apartment, specifically

stating as follows:


        [I]n the present case, the illegal second floor apartment is to be
        removed. During no point in this property’s two and a half year
        history, has it ever been demonstrated that the second floor
        apartment is legal, safe and compliant with Zoning.


        In addition, the record of the hearing is devoid of any evidence
        that the upstairs apartment was ever lawfully converted into an
        apartment. In order to be a lawful non conforming use, the use
        must have “lawfully existed prior to the enactment of a zoning
        ordinance.” The property owner of 4839 Elm have [sic] failed to
        show, by any evidence, that this conversion was ever performed
        legally.


        Based on the evidence, and law, the 2nd Floor Apartment at 4839
        Elm cannot lawfully be occupied in its present condition. Should
        proper zoning approval be obtained, and the property brought
        into compliance with all current building and fire codes, this
        decision could be reconsidered by the Appellees, but at the
        present moment under the present circumstance, the declaration
        of the Inspections Department that the property is uninhabitable
        is AFFIRMED.


Appellant’s Appendix Volume 2 at 47. That same day, the City issued its

Findings and Order noting that the Board found that no building permits were

applied for or issued for a second-floor apartment as required by the Hammond

Municipal Code and that no fire separation between units exists in violation of


Court of Appeals of Indiana | Opinion 45A03-1605-MI-1067 | July 7, 2017      Page 6 of 20
      the International Building Code on fire separation and ordering that “[t]he 2nd

      floor apartment must be removed, the property converted back to a single

      family home and all work must be performed by licensed contractor(s) in the

      city of Hammond.” Id. at 48.


[8]   On May 11, 2015, Vega filed a complaint for judicial review pursuant to Ind.

      Code § 36-7-9-8 in the Lake Superior Court and attached Exhibits A-K, which

      included a copy of the Board’s Findings of Fact and Decision and the City’s

      Findings-Order of May 7, 2015. On June 12, 2015, Vega’s counsel conducted a

      deposition of Saliga in which Saliga acknowledged that he “misspoke” at the

      April 30, 2015 hearing of the Board when he indicated that he had not been

      contacted to set up an inspection because at that time he had forgotten about

      the letter he received from Vega’s counsel. Plaintiff’s Exhibit 6 at 38.


[9]   On March 8, 2016, the court held a judicial review hearing and the parties

      tendered and the court admitted Joint Exhibit 1, which is a collection of video

      recordings of the Board meetings in question, including two segments of the

      November 13, 2014 meeting, as well as the hearings of April 30, 2015, and May

      7, 2015. Each segment was played for the court. Following the presentation of

      the recordings, Vega’s counsel offered and the court admitted Plaintiff’s Group

      Exhibit 1, which is a copy of Exhibits A through K attached to the complaint

      for judicial review. Vega’s counsel then offered and the court admitted

      Plaintiff’s Group Exhibit 2 containing the minutes of the Board hearings from

      November 13, 2014, April 30, 2015, and May 7, 2015. Next, Vega’s counsel

      offered Plaintiff’s Group Exhibit 3 containing excerpts from a deposition of

      Court of Appeals of Indiana | Opinion 45A03-1605-MI-1067 | July 7, 2017    Page 7 of 20
Saliga taken on July 24, 2013, noting that if opposing counsel wished to offer

additional portions “it’s certainly his free game.” Transcript at 126. The

Appellees’ counsel noted that it was the first he’d seen of it “in this form in

partial deposition,” and objected on that basis, and the court admitted the

exhibit and noted that the Appellees would have the opportunity “to make any

appropriate responses to it by way of other portions of the deposition.” Id. at

127. Vega’s counsel next offered Plaintiff’s Group Exhibit 4, which included

five exhibits received during Saliga’s June 12, 2015 deposition, and the court

admitted the exhibit. Vega’s counsel then offered Plaintiff’s Exhibit 5

containing excerpts of the Saliga deposition of June 12, 2015, before

withdrawing it and instead offering the entire deposition as Plaintiff’s Exhibit 6,

which the court admitted. The court then asked Appellees’ counsel “You don’t

have an objection to the whole dep being admitted, do you?” and counsel

replied: “My objection is he’s attempting to offer evidence that wasn’t before

the Board. I made that objection. I can keep making that objection if you

want.” Id. at 134-135. The court responded as follows:


        And I think based upon -- what I’m going to basically do, I’ll just
        let you folks know now. After I hear all the evidence, I will give
        you ten days after the hearing to submit your findings and
        conclusions. The Court will consider that. So we can end that,
        address every and any matter that you want to address.


Id. at 135. The court also admitted Plaintiff’s Exhibit 7 containing a permit

history, Plaintiff’s Exhibit 9, which is the Appellees’ Response to Vega’s



Court of Appeals of Indiana | Opinion 45A03-1605-MI-1067 | July 7, 2017    Page 8 of 20
       Request for Admission, and Plaintiff’s Exhibit 10 containing the Appellees’

       Answer to Vega’s Interrogatories.


[10]   After the court admitted Plaintiff’s Exhibit 10, Vega rested and the court

       recessed for lunch. When the hearing reconvened, the Appellees’ counsel

       began as follows:


               Your Honor, we would like to make a quick motion for directed
               verdict. We think the plaintiff has the obligation to put the
               record of the Board of Works hearings from November 13, 2014;
               April 30th, 2015; May 7th, 2015, before the Court, and has failed
               to do so. Has only put piecemeal documents in front of the
               Court that were part of the Board’s record. We also don’t think
               the plaintiff has met his burden to show the Findings are
               arbitrary, capricious, et cetera.


               There isn’t any dispute that the -- at least there hasn’t been any
               evidence so far that the building is occupied, the two units
               without proper fire separation, and that that’s a dangerous
               condition. And there also isn’t any record that the Board’s
               decision not to allow [Vega’s counsel] and Mr. Vega a ninth
               continuance after two years of litigation that that Finding also
               was arbitrary, capricious, et cetera.


       Id. at 152-153. Vega’s counsel responded by asserting that he presented an

       adequate record and that “the only inspection done by Mr. Saliga was in 2013”

       and “[t]here was supposed to be an inspection before there was a hearing on the

       merits.” Id. at 154-155. The court then granted the Appellees’ motion without

       elaboration. Id. at 156.




       Court of Appeals of Indiana | Opinion 45A03-1605-MI-1067 | July 7, 2017      Page 9 of 20
[11]   The next day, the court entered a written order granting the Appellees’ motion,

       which it termed a motion for judgment on the evidence, again without

       explanation. Vega subsequently filed a motion to correct errors which was

       denied.


                                                     Discussion

[12]   The dispositive issue is whether the trial court abused its discretion in granting

       the Appellees’ motion for directed verdict. At the outset we address an

       argument raised by Vega in which he asserts that the Appellees’ motion was

       made pursuant to Ind. Trial Rule 50, which is improper at a bench trial, that

       accordingly “the court made no [] findings,” and that he “was unable to request

       findings of fact since the trial court rendered judgment upon the incorrect rule

       and thus inappropriately limited review by the Court of Appeals.” Appellant’s

       Brief 10.


[13]   The Indiana Supreme Court has noted that a court on appeal will address a trial

       court’s ruling on a motion for directed verdict made at a bench trial as a Trial

       Rule 41(B) motion for an involuntary dismissal. See Workman v. State, 716

       N.E.2d 445, 447 (Ind. 1999) (noting that directed verdict motions made under

       Ind. Trial Rule 50, “otherwise known as judgments on the evidence, [are] not

       applicable to bench trials” and that the Court would “address the motion as a

       Trial Rule 41(B) motion for an involuntary dismissal”). Ind. Trial Rule 41(B)

       provides:


               (B) Involuntary dismissal: Effect thereof. After the plaintiff or
               party with the burden of proof upon an issue, in an action tried
       Court of Appeals of Indiana | Opinion 45A03-1605-MI-1067 | July 7, 2017   Page 10 of 20
               by the court without a jury, has completed the presentation of his
               evidence thereon, the opposing party, without waiving his right
               to offer evidence in the event the motion is not granted, may
               move for a dismissal on the ground that upon the weight of the
               evidence and the law there has been shown no right to relief.
               The court as trier of the facts may then determine them and
               render judgment against the plaintiff or may decline to render
               any judgment until the close of all the evidence. If the court
               renders judgment on the merits against the plaintiff or party with
               the burden of proof, the court, when requested at the time of the
               motion by either party shall make findings if, and as required by
               Rule 52(A). Unless the court in its order for dismissal otherwise
               specifies, a dismissal under this subdivision or subdivision (E) of
               this rule and any dismissal not provided for in this rule, other
               than a dismissal for lack of jurisdiction, operates as an
               adjudication upon the merits.


[14]   A court is required to enter findings when granting a motion for involuntary

       dismissal under Ind. Trial Rule 41(B) only upon request at the time of the

       motion by either party. The record reveals that Vega did not make a request for

       findings. We therefore find any error by the trial court in granting the

       Appellees’ motion based upon the wrong rule of trial procedure and not

       entering findings to be waived. See Puckett v. Miller, 178 Ind. App. 174, 182-183,

       381 N.E.2d 1087, 1092-1093 (1978) (noting that “The comments of the Civil

       Code Study Commission with regards to TR 41(B) states, ‘This fulfills the

       function of a motion for a directed verdict in a jury case (a motion for judgment

       on the evidence under Rule 50). It will not modify present Indiana practice to any

       degree[’]”) (footnote omitted).




       Court of Appeals of Indiana | Opinion 45A03-1605-MI-1067 | July 7, 2017    Page 11 of 20
[15]   “A Trial Rule 41 motion to dismiss tests the sufficiency of the plaintiff’s case in

       chief.” Brown v. Guinn, 970 N.E.2d 192, 195 (Ind. Ct. App. 2012). “Our review

       of the denial of the motion for involuntary dismissal is limited to an

       examination of the evidence most favorable to the nonmoving party that was

       presented prior to the filing of the motion.” Id.


[16]   Vega asserts that the Appellees, in making their motion for directed verdict,

       stated that he had the obligation to offer into evidence the entire administrative

       record but that he “is unaware of any such requirement.” Appellant’s Brief at

       10. He further argues in his reply brief that this is a misinterpretation of Kollar

       v. Civil City of South Bend, 695 N.E.2d 616 (Ind. Ct. App. 1998), reh’g denied,

       trans. denied. He contends that, even if he were charged with providing the

       court with the full administrative record, he satisfied that requirement when he

       tendered the video recordings of the relevant hearings in Joint Exhibit 1. He

       points out that the court admitted into evidence a number of documentary

       exhibits, including the entire deposition of Saliga as Plaintiff’s Exhibit 6, which

       it did not have time to review when it granted the directed verdict at the close of

       his case-in-chief, and argues that the court envisioned admitting the exhibits

       and subsequently giving the parties ten days to submit findings and conclusions

       but that it instead granted the directed verdict motion without reviewing those

       exhibits. He also argues that he presented evidence that the City had agreed to

       a re-inspection of his property by Saliga prior to a hearing on the merits, that

       such inspection had not been performed despite the request of counsel, that the

       Board’s ruling “appears to be based upon the delay rather than any merits of the


       Court of Appeals of Indiana | Opinion 45A03-1605-MI-1067 | July 7, 2017   Page 12 of 20
       Notice,” and that accordingly such ruling was arbitrary and capricious.

       Appellant’s Brief at 9.


[17]   The Appellees argue that “Vega was supposed to place the entire

       Administrative Record of the Board before the trial Court so that the Trial

       Court would be able to examine the documentary evidence as well as the

       statements made at the various hearings, but he refused to do so.” Appellees’

       Brief at 27. They assert that the Board’s decision is entitled to deference on

       judicial review, and “[l]acking the entire Administrative Record . . . there [] was

       no legitimate basis for the Trial Court to question the Board’s ruling . . . .” Id.

       at 29.


[18]   To the extent the Appellees’ motion was based upon the fact that Vega did not

       enter into evidence the full administrative record, we observe that Vega filed the

       complaint for judicial review pursuant to Ind. Code § 36-7-9-8, which provides

       as follows:

                (a) An action taken by the hearing authority under section 7(d),
                7(e), or 9(d) of this chapter or a finding by the hearing authority
                of abandonment under IC 36-7-37 is subject to review by the
                circuit or superior court of the county in which the unsafe
                premises are located, on request of:


                        (1) any person who has a substantial property interest in
                        the unsafe premises; or


                        (2) any person to whom that order or finding was issued.



       Court of Appeals of Indiana | Opinion 45A03-1605-MI-1067 | July 7, 2017      Page 13 of 20
               (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.


               (c) An appeal under this section is an action de novo. The court
               may affirm, modify, or reverse the action taken by the hearing
               authority.


[19]   There is no dispute that Vega complied with Section 8’s requirements that he

       file the complaint within ten days and that the complaint include the findings of

       fact and the action taken by the hearing authority. Indeed, Vega’s complaint

       contained twelve exhibits, and Exhibit H included the Board’s Findings of Fact

       and Decision entered on May 7, 2015, as well as the City’s May 7, 2015

       Findings-Order. Section 8 does not require that the complainant file the entire

       administrative record with the circuit or superior court. Moreover, as

       highlighted above at the hearing Vega introduced a number of exhibits,

       including video recordings of all the relevant Board hearings, as well as

       transcripts of those hearings, two depositions of Saliga and exhibits received

       during Saliga’s deposition, and responses to a request for admission and

       interrogatories.


[20]   It appears that the Appellees’ motion is based upon a provision in Indiana’s

       Administrative Orders and Procedures Act (“AOPA”), in which Ind. Code § 4-

       21.5-5-13(a) requires that:




       Court of Appeals of Indiana | Opinion 45A03-1605-MI-1067 | July 7, 2017    Page 14 of 20
               Within thirty (30) days after the filing of the petition, or within
               further time allowed by the court or by other law, the petitioner
               shall transmit to the court the original or a certified copy of the
               agency record for judicial review of the agency action, consisting
               of:


                        (1) any agency documents expressing the agency action;


                        (2) other documents identified by the agency as having
                        been considered by it before its action and used as a basis
                        for its action; and


                        (3) any other material described in this article as the
                        agency record for the type of agency action at issue,
                        subject to this section.


       Ind. Code § 4-21.5-2-0.1(a)(1) governs the application of AOPA and states that

       it governs “all proceedings, and all proceedings for judicial review or civil

       enforcement of agency action . . . .” (Emphasis added). An “agency” under

       AOPA “means any officer, board, commission, department division, bureau, or

       committee of state government that is responsible for any stage of a proceeding

       under this article. . . .” (Emphasis added). The Board is not a state government

       agency; rather, it is a works board defined in Ind. Code § 36-1-2-24(3). As such,

       the Board is not governed by AOPA.


[21]   This Court discussed “action de novo” judicial review, as called for in Ind.

       Code § 36-7-9-8(c), in Kollar. As in this case, the Kollars appealed a demolition

       order served by the municipal body, the South Bend City Enforcement

       Division, which the trial court affirmed. 695 N.E.2d at 618-619. We discussed

       Court of Appeals of Indiana | Opinion 45A03-1605-MI-1067 | July 7, 2017        Page 15 of 20
       the standard of review applicable under Ind. Code § 36-7-9-8, in which the

       Kollars asserted “that the words ‘action de novo’ require the trial court to

       rehear the evidence and decide anew whether the demolition order was

       reasonable.” Id. at 619. The Kollars argued that because the statute “does not

       provide for the preparation of a transcript of the hearing officer’s proceedings”

       and the record of the administrative proceedings “was not preserved, it is

       necessary for the trial court to rehear the evidence and decide the issues anew.”

       Id.


[22]   We disagreed, observing that “[i]t is well established in Indiana law that the

       term ‘de novo’ in statutes providing for judicial review of administrative orders

       does not authorize a trial court to substitute its judgment for that of the agency

       below.” Id. Citing separation of powers concerns, we held that the standard of

       review to be applied is as follows:


               A court reviewing under a de novo statutory direction may, to a
               limited extent, weight the evidence supporting the finding of fact
               by an administrative agency. But it may negate that finding only
               if, based upon the evidence as a whole, the finding of fact was


                        (1) arbitrary,


                        (2) capricious,


                        (3) an abuse of discretion,


                        (4) unsupported by the evidence or



       Court of Appeals of Indiana | Opinion 45A03-1605-MI-1067 | July 7, 2017   Page 16 of 20
                        (5) in excess of statutory authority.


       Id. (quoting Uhlir v. Ritz, 255 Ind. 342, 345-346, 264 N.E.2d 312, 314 (1970)).

       Also, “the trial court may not substitute its judgment for that of the agency

       below as ‘the facts [are to be] determined but once.’” Id. at 619-620 (quoting

       City of Mishawaka v. Stewart, 261 Ind. 670, 677, 310 N.E.2d 65, 69 (1974)). We

       found that the absence of a transcript in that case did not require “a different

       interpretation of ‘de novo,’” noting that “the Kollars had the burden to prove

       that the demolition order was unreasonable” and “were responsible for the

       presentation of evidence” and that “the supreme court has held that the trial

       court may review an agency’s decision through either a ‘re-examination of the

       evidence upon which the administrative agency acted, or by the original

       reviewing court hearing evidence, depending upon the legislative scheme under

       which the agency operates.’” Id. at 620 (quoting Warren v. Ind. Telephone Co.,

       217 Ind. 93, 117, 26 N.E.2d 399, 409 (1940)). Thus, we concluded that “it was

       appropriate for the trial court to rehear the evidence upon which the officer

       below made its decision.” Id.


[23]   Although it was Vega’s burden to prove that the Board’s action was arbitrary,

       capricious, an abuse of discretion, unsupported by the evidence, or in excess of

       statutory authority, and to present evidence, he was not required to produce the

       entire administrative record. Rather, he was required to present the evidence

       relevant to his theory of the case, the crux of which is that the Board’s decision

       to order the demolition of the property before Saliga performed a re-inspection

       was arbitrary and capricious. To the extent that the court granted the
       Court of Appeals of Indiana | Opinion 45A03-1605-MI-1067 | July 7, 2017   Page 17 of 20
       Appellees’ motion at the close of Vega’s case-in-chief because he did not present

       the entire administrative record, it erred in doing so.


[24]   The Appellees also argued in their motion that Vega did not present evidence to

       dispute that the property located at 4839 Elm Street is an unsafe building in

       violation of Ind. Code §§ 36-7-9 or that “the Board’s decision not to allow

       [Vega’s counsel] and Mr. Vega a ninth continuance after two years of

       litigation” was arbitrary or capricious. Transcript at 153. An administrative

       decision is arbitrary and capricious only when it is willful and unreasonable,

       without consideration or in disregard of the facts and circumstances of the case,

       or without some basis which could lead a reasonable person to the same

       conclusion. Fishburn v. Ind. Pub. Retirement Sys., 2 N.E.3d 814, 821 (Ind. Ct.

       App. 2014), trans. denied.


[25]   The record reveals that, following the initial action by the Board in November

       2014 ordering demolition of 4839 Elm Street, Vega by counsel moved the

       Board to grant relief, and it did so and reset a hearing for February 26, 2015.

       That hearing was again reset by agreement between the parties for April 30,

       2015, in order to give Saliga an opportunity to re-inspect the property prior to a

       final hearing on the merits. In early March 2015, Vega’s counsel sent via email

       and fax a letter to Saliga requesting to coordinate an inspection. The letter also

       indicated that Vega’s counsel understood that Attorney Kantar would

       communicate with Saliga for help setting up the inspection. As the April 30,

       2015 hearing approached, Vega’s counsel requested another continuance,

       noting that he had not heard from Saliga “since the communications in early

       Court of Appeals of Indiana | Opinion 45A03-1605-MI-1067 | July 7, 2017   Page 18 of 20
       March,” that he had “put in a call to him Tuesday (4/28) but missed him by a

       couple-of-minutes,” and that he hoped that Saliga’s “schedule will permit us to

       coordinate something in May and, hopefully, have a ‘sit-down’ in June to see if

       it’s resolvable.” Appellant’s Appendix Volume 2 at 29.


[26]   At the Board’s April 30, 2015 hearing, Kantar noted the requested continuance

       and observed that the matter “has been continued at regular intervals for over

       two years” and “doesn’t ever seem to be going anywhere.” Transcript at 122-

       123. She recommended that Saliga prepare an order of demolition for the

       Board to approve and that Vega could then “appeal it if he wants to. Enough is

       enough.” Id. at 123. At the hearing, Saliga indicated to the Board that neither

       Vega nor his counsel had made an attempt to schedule the re-inspection. At a

       deposition conducted on June 12, 2015, however, Saliga admitted that he

       “misspoke” at the hearing and that he had in fact received correspondence from

       Vega’s counsel to which he did not respond and that he had forgotten about

       that letter. Plaintiff’s Exhibit 6 at 38.


[27]   On this record, and viewing the evidence most favorable to Vega, we conclude

       that Vega has made a requisite showing that the Board’s order was made

       without consideration or in disregard of the facts and circumstances of the case

       and was therefore arbitrary and capricious and that the trial court erred in

       dismissing Vega’s complaint for judicial review at the close of his case-in-chief.

       At the very least, he has shown that both the Appellees and Vega agreed that a

       re-inspection of the property was warranted prior to a decision on the merits

       and that his counsel engaged Saliga to set up that inspection. Prior to the April

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       30, 2015 hearing, Vega’s counsel asked for a continuance and proposed a short

       timeline for completing the inspection and examining whether the matter was

       resolvable prior to a final hearing, but this proposal was rejected at Kantar’s

       recommendation. The dismissive attitude in taking final administrative action

       based primarily on delay rather than the merits of whether the property should

       be ordered demolished is exhibited by Kantar’s statement to the Board that

       Vega could, following action by the Board, “appeal it if he wants to. Enough is

       enough.” Transcript at 123. The court’s order of dismissal is reversed and the

       matter remanded for further proceedings.


                                                     Conclusion

[28]   For the foregoing reasons, we reverse the court’s order and remand for further

       proceedings consistent with this opinion.


[29]   Reversed and remanded.


       Vaidik, C.J., and Bradford, J., concur.




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