Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law                       May 29 2013, 9:28 am
of the case.




APPELLANT PRO SE:                                    ATTORNEYS FOR APPELLEE:

PHILIP R. DAVIS                                      JAMES P. FENTON
Fort Wayne, Indiana                                  TIMOTHY A. MANGES
                                                     Eilbacher Fletcher, LLP
                                                     Fort Wayne, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA


PHILIP R. DAVIS,                                     )
                                                     )
        Appellant,                                   )
                                                     )
               vs.                                   )     No. 02A03-1209-PL-385
                                                     )
CITY OF FORT WAYNE,                                  )
                                                     )
        Appellee.                                    )


                       APPEAL FROM THE ALLEN CIRCUIT COURT
                           The Honorable Thomas J. Felts, Judge
                              Cause No. 02C01-1206-PL-43


                                            May 29, 2013

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                        Case Summary

         In this consolidated appeal, Philip Davis appeals the trial court’s dismissals of his

complaints for judicial review. We affirm.

                                              Issue

         Davis raises one issue, which we restate as whether his complaints were timely

filed.

                                              Facts

         Davis owns property at 5105 Hoagland Avenue and 5405 South Harrison Street in

Fort Wayne. On April 10, 2012, the City of Fort Wayne (“the City”) issued orders

requiring Davis to demolish the structures on the properties. A hearing on the demolition

orders was conducted by a hearing officer on May 22, 2012. Davis attended the hearing,

and the demolition orders were affirmed. The hearing officer issued written orders,

which were notarized on May 29, 2012, and mailed to Davis. On June 4, 2012, Davis

filed complaints for judicial review of the demolition orders. On June 20, 2012, the City

filed motions to dismiss Davis’s complaints because they were untimely. On July 2,

2012, Davis responded to the motions to dismiss. On July 5, 2012, after a hearing, the

trial court granted the City’s motions to dismiss with prejudice. Davis now appeals.1

                                            Analysis

         Davis claims that the trial court improperly dismissed his complaints for judicial

review because they were timely filed. “The standard of appellate review of rulings on

1
   Davis filed separate notices of appeal and the cases were separately briefed under cause numbers
02A03-1209-PL-385 and 02A03-1209-PL-387. On April 12, 2013, the cases were consolidated under
cause number 02A03-1209-PL-385.
                                                2
motions to dismiss on jurisdictional grounds depends on whether the trial court resolved

disputed facts, and if so, whether the trial court conducted an evidentiary hearing or ruled

on a paper record.” Wayne Cnty. Prop. Tax Assessment Bd. of Appeals v. United

Ancient Order of Druids-Grove No. 29, 847 N.E.2d 924, 926 (Ind. 2006). “We review de

novo a ruling on a motion to dismiss for lack of jurisdiction if the facts are not disputed

or, as here, the court rules on a paper record.” Id. Because the facts are undisputed and

no evidentiary hearing was conducted, we review the dismissal de novo.

       Indiana Code Section 36-7-9-5(a)(6) permits an enforcement authority2 to issue an

order requiring the demolition of an unsafe building. Indiana Code Section 36-7-9-7

requires that an evidentiary hearing be conducted by a hearing authority regarding certain

orders, including demolition orders, issued by an enforcement authority.

               At the conclusion of any hearing at which a continuance is
               not granted, the hearing authority may make findings and take
               action to:

                       (1) affirm the order;

                       (2) rescind the order; or

                       (3) modify the order, but unless the person to whom
                       the order was issued, or counsel for that person, is
                       present at the hearing, the hearing authority may
                       modify the order in only a manner that makes its terms
                       less stringent.




2
   “‘Enforcement authority’ refers to the chief administrative officer of the department, except in a
consolidated city. In a consolidated city, the division of development services is the enforcement
authority, subject to IC 36-3-4-23.” Ind. Code § 36-7-9-2.


                                                 3
Ind. Code § 36-7-9-7(d) (emphasis added).       Indiana Code Section 36-7-9-8 permits

judicial review of an action taken under Indiana Code 36-7-9-7(d) and provides in part:

               (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.

(Emphasis added.)

      The parties do not dispute that the hearing authority affirmed the demolition orders

at the conclusion of the May 22, 2012 hearing. Thus, according to the City, the action

was taken on May 22, 2012, for purposes of the ten-day limit to file a complaint for

judicial review. The City contends that Davis’s June 4, 2012 complaints were untimely.

Davis responds by arguing that the ten-day limit did not begin until the hearing officer

signed the written orders on May 29, 2012 and, therefore, his June 4, 2012, complaints

were timely.

      Davis argues that, without a written order, he could not prepare a verified

complaint as required by Indiana Code Section 36-7-9-8(b). Davis suggests that, in the

absence of a written order, he would have to record the hearing himself or take laborious

notes while testifying to comply with the verification requirement. This overstates the

verification requirement. Under Indiana Trial Rule 11, the signer who verifies a pleading

must have personal knowledge thereof or reasonable cause to believe the existence of the

facts or matters stated or alleged therein. See Giles v. Cnty. Dep’t of Pub. Welfare of

Marion Cnty., 579 N.E.2d 653, 655 (Ind. Ct. App. 1991), trans. denied. Thus, as long as

Davis had personal knowledge of the facts asserted in the complaints or reasonable cause

                                            4
to believe the matters asserted in the complaints, the verification requirement would have

been satisfied.3 We are not persuaded that a written order must be issued to satisfy the

verification requirement of Indiana Code Section 36-7-9-8(b).

       Davis also argues that requiring a written order allows the hearing officer to

confirm the accuracy of the directive and to correct any confusion created by the verbal

order. Although that may be the case, it does not mean that a written order is legally

required or that the signing of a written order starts the clock for purposes of the ten-day

limit for seeking judicial review. We turn to the statutory framework for the resolution of

those issues.

       Davis contends that a written order is statutorily required because Indiana Code

Section 36-7-9-7(i), provides, “[t]he record of the findings made and action taken by the

hearing authority at the hearing shall be available to the public upon request.” We also

are not persuaded by this argument because that subsection goes on to state, “[h]owever,

neither the enforcement authority nor the hearing authority is required to give any person

notice of the findings and action.” I.C. § 36-7-9-7(i).

       In Starzenski v. City of Elkhart, 659 N.E.2d 1132 (Ind. Ct. App. 1996), trans.

denied, cert. denied, we addressed a similar argument. In that case, Sophie, Kazmer, and

Gennie Starzenski owned property in Elkhart. Sophie received notice of an October 29,

1992 hearing on an enforcement authority order requiring the removal of trash from the

premises. Starzenski, 659 N.E.2d at 1135. Sophie appeared at the hearing, offered

3
   Although Davis’s complaints include almost verbatim recitations of the written orders, there is no
indication that such was required to satisfy the verification requirement.


                                                 5
evidence, cross-examined witnesses, and presented argument. Id. The hearing authority

affirmed the order and notified Sophie of her right to appeal the decision within ten days.

Id. at 1136. Sophie did not appeal or clean the premises and, when workers began

cleaning the premises on February 8, 1993, Sophie sought and received a temporary

restraining order. Id. When Sophie’s request for a preliminary injunction failed, she

appealed arguing that the ten-day limit did not apply because she was never served with

written notice of the hearing authority’s action. Id. at 1136-37.

       After analyzing Indiana Code Section 36-7-9-7(i), we concluded:

                Indiana Code 36-7-9 does not require the hearing authority to
                serve written notice of its decision on the parties. The
                Hearing Authority informed Sophie of his findings and action
                at the conclusion of the hearing, and specifically informed her
                of the 10-day appeal procedure. This satisfies the statutory
                requirements, and triggered the 10-day appeal period.

Id. at 1137.4

       Relying on Indiana Code Section 36-7-9-7(d), we further concluded that the

hearing authority took action at the conclusion of the October 29, 1992 hearing when it

affirmed the enforcement authority’s order and the Starzenskis failed to appeal from that

action within the requisite time period, waiving their challenge to the hearing authority’s

decision and the enforcement authority’s order. Id.

       Davis attempts to distinguish Starzenski by arguing that, unlike the Starzenskis,

who did not receive any written order and never filed an appeal of the hearing authority’s

decision, “the delay in the availability of the record reasonably delayed his ability to file

4
  Davis makes no argument regarding whether he was informed of the 10-day limit at the hearing, and
were not provided with a transcript of the hearing.
                                                6
an appeal.” Appellant’s Br. p. 8. We disagree. Absent statutory authority, we do not

believe that the hearing officer’s issuance of written orders extended or altered the time

limit for seeking judicial review of those decisions.                   Following the reasoning in

Starzenski, the hearing officer took action when it affirmed the demolition orders at the

May 22, 2012 hearing, not when it signed the written orders on May 29, 2012. Thus,

Davis was required to file complaints for judicial review no later than June 1, 2012, and

his June 4, 2012 complaints were untimely.5

                                              Conclusion

        Because the hearing officer affirmed the demolition orders at the conclusion of the

May 22, 2012 hearing, Davis’s June 4, 2012 complaints were untimely. The trial court

properly dismissed the complaints. We affirm.

        Affirmed.

NAJAM, J., and BAILEY, J., concur.




5
  Davis also argues that due process requires a reasonable amount of time to prepare the complaint. This
argument, however, is not supported with citation to authority and is waived. See Romine v. Gagle, 782
N.E.2d 369, 386 (Ind. Ct. App. 2003) (“A party generally waives any issue for which it fails to develop a
cogent argument or support with adequate citation to authority and portions of the record.”), trans. denied;
Ind. Appellate Rule 46(A)(8)(a) (requiring each contention to be supported by citations to authorities,
statutes, and the Appendix relied on).
                                                     7
