MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Feb 13 2017, 5:26 am
court except for the purpose of establishing
                                                                       CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
estoppel, or the law of the case.                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
Alan W. Roles                                            Richard R. Fox
Coleman, Roles & Associates, PLLC                        Steven A. Gustafson
Louisville, Kentucky                                     Fox Law Offices, LLC
                                                         New Albany, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Katherine Fraze,                                         February 13, 2017
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         22A01-1605-CC-982
        v.                                               Appeal from the Floyd Superior
                                                         Court
The Floyd County Health                                  The Honorable James H. Hancock,
Department and The City of                               Judge
New Albany Department of                                 Trial Court Cause No.
Animal Control,                                          22D02-1001-CC-210
Appellees-Defendants.




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CC-982 | February 13, 2017    Page 1 of 14
                                   Case Summary and Issue
[1]   Katherine Fraze resides on property she owns in Floyd County, Indiana. She

      appeals the trial court’s order that she vacate the premises and refrain from

      using it as a residence until such time as she obtains a sewer connection or

      completes the installation of a septic system approved by the Floyd County

      Health Department (“Health Department”). Fraze appeals, raising one issue

      for our review: whether the trial court abused its discretion in so ordering.

      Concluding the trial court did not abuse its discretion, we affirm.



                              Facts and Procedural History
[2]   Due to irregularities in the filing of materials in this appeal, the information we

      may rely on in describing the facts and procedural history of this case is

      extremely limited.1 Since 1998, Fraze has resided in a recreational vehicle

      located on 130 acres she owns in Floyd County. A holding tank is attached to

      the RV for the disposal of waste water from the toilet, shower, and sinks. Prior




      1
        Specifically, the transcripts of eleven hearings conducted during the pendency of this action were
      transmitted to this court but they are not transcripts prepared by the official court reporter in accordance with
      the appellate rules. See Ind. Appellate Rule 28. The Health Department pointed this out to the trial court in
      a Motion for Correction or Modification of Clerk’s Record, and it appears the trial court struck the disputed
      transcripts and ordered Fraze to correct the record in compliance with the rules. Fraze did thereafter
      appropriately request the preparation of a transcript from the most recent of those eleven hearings, but for
      reasons not apparent to us, that official transcript has never been filed with this court. For this reason, we
      have not consulted the transcripts in our consideration of this case. In addition, three separate packets of
      exhibits have been transmitted to this court. Two of the packets list the date of the hearing during which they
      were introduced; the third has no identifying information whatsoever. Because we are not aware of who
      provided these exhibits, nor are they in conformity with the appellate rules, see App. R. 29, we have also not
      considered them, leaving us only with the appendices provided by the parties.

      Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CC-982 | February 13, 2017             Page 2 of 14
      to 2010, Fraze also operated a dog rescue organization on her property. In

      December 2009, two people came to Fraze’s property to inquire about adopting

      a dog. Whilst there, they were bitten, and a report was made to the Indiana

      State Department of Health. In early January 2010, representatives from the

      county Health Department arrived at Fraze’s property to investigate. On

      January 12, 2010, the Health Department served Fraze with a Notice of

      Violation and Order to Abate, notifying Fraze that her property was “unfit for

      human habitation and dangerous or detrimental to life or health” for the

      following reasons: there was dog waste all over the yard; a holding tank is only

      allowed to provide onsite sewage disposal for up to one year; there was

      miscellaneous debris around and inside the residence; and the property was in

      an unsanitary condition, including the lack of running water. Appellant’s

      Appendix Vol. 1 at 79. The Health Department ordered Fraze to clean up the

      dog waste in the yard and the miscellaneous debris in and outside the home,

      and to contact a soil scientist for a soil test, a licensed installer for installation of

      a septic system, and the Health Department for a septic permit, all by January

      27, 2010.


[3]   At some point after receiving this notice, Fraze requested from the Health

      Department an extension of time to comply, which the Health Department did

      not grant. Instead, on January 27, 2010, the Health Department served Fraze

      with a Notice of Violation and Order to Vacate, noting her dwelling is unfit for

      human habitation because it had no septic system, had dog waste in the yard,

      and had miscellaneous debris inside and outside the residence. Accordingly,


      Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CC-982 | February 13, 2017   Page 3 of 14
      the dwelling was declared a public nuisance and she was ordered to vacate the

      dwelling within five days. On January 28, 2010, Fraze filed a Petition for

      Review of Notice of Violation and Order to Vacate with Floyd Superior Court

      asking the Notice and Order be set aside. The trial court granted her a

      temporary motion to stay and set a hearing.


[4]   The trial court held an emergency hearing on February 4, 2010. At the

      conclusion of the hearing, the trial court issued an order stating that the Health

      Department’s order to abate and order to vacate were proper but that Fraze’s

      request for an extension of time to comply was reasonable and should have

      been granted. The order therefore granted her six months from the date of the

      hearing to comply with the laws governing sanitary systems and running water.

      At a review hearing on September 13, 2010, the trial court found Fraze was in

      compliance regarding running water, but not yet in compliance regarding the

      septic system. She was ordered to “make affirmative steps to conform with the

      laws of Floyd Co. within 21 days.” Id. at 5.


[5]   Several review hearings were held and interim orders were entered over the

      course of the next five years.2 On November 19, 2015, the Health Department




      2
        Concurrent with the proceedings regarding the sanitary system, proceedings were held regarding Fraze’s
      compliance with Floyd County animal control ordinances. That aspect of the case was discussed in a
      previous appeal. Fraze v. Floyd Cnty. Health Dep’t, No. 22A04-1402-CC-62 (Ind. Ct. App. June 30, 2014)
      (holding Fraze’s motion to reconsider or, in the alternative, to correct error with respect to a September 2010
      order limiting the number of dogs she could keep on her property was untimely because it was filed in
      November 2013, despite ongoing status conferences and contempt proceedings conducted in the interim),
      trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CC-982 | February 13, 2017            Page 4 of 14
filed a motion for summary judgment, seeking enforcement of the trial court’s

prior order affirming the Health Department’s notice of violation and order for

Fraze to vacate the premises until such time as she makes permanent

arrangements for running water and sewage disposal and receives Health

Department approval. The Health Department asserted the trial court’s order

of February 4, 2010 was the law of the case, that Fraze had not exhausted

administrative remedies for seeking an exemption from the sewage disposal

regulations, and that “[t]here are no longer any grounds for appealing this

[c]ourt’s prior orders and no valid reason not to put them into effect.” Id. at 51.

Fraze objected to the entry of summary judgment for the Health Department

and filed her own Motion for Summary Judgment on Issue of Whether Plaintiff

is Required to Install a Septic Tank on February 16, 2016. Fraze’s motion for

summary judgment alleged the Health Department cannot require her to cease

utilizing a holding tank and convert to a septic system because:

        (a) The installation of a septic system on [her] property would be
        cost prohibited;
        (b) The topography of [her] land will not support a septic system;
        (c) There are no health problems or harm to the public resulting
        from [her] utilizing a holding tank attached to her recreational
        vehicle for disposal of waste;
        (d) There is no danger to the environment as a result of [her] use
        of the holding tank attached to her recreational vehicle, which
        does not leak and is cleaned and serviced regularly;
        (e) [Her] recreational vehicle is moved within every one hundred
        and eighty days (180) and is not a permanent structure;
        (f) [She] has lived in a recreational vehicle since 1998, prior to the
        adoption of the Floyd County Zoning Ordinance in 2006
        prohibiting the use of a recreational vehicle as a residence and to

Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CC-982 | February 13, 2017   Page 5 of 14
              require her to vacate the premises at this time would be an ex post
              facto application of the Ordinance; and
              (g) To require [her] to cease in using a holding tank and install a
              costly septic system would be an exercise in selective
              enforcement of the law.


      Id. at 109-10.


[6]   The trial court entered an order on the motions for summary judgment on

      March 8, 2016, granting the Health Department’s motion and denying Fraze’s:

              [Fraze] is Ordered to vacate the premises, and is enjoined from
              using the land at issue as a residence, until such time as she
              obtains either a sewer connection, or completes the installation of
              a septic tank and system approved by the [Health Department].


      Id. at 25. Fraze thereafter filed a motion to correct error and a motion to stay.

      The motion to correct error, in addition to reiterating the arguments made in

      her motion for summary judgment, also alleged the trial court ignored the law

      applicable to campgrounds and enforcement of the prior order amounts to a

      taking of her property for public use without compensation. The trial court

      denied both motions and this appeal ensued.



                                 Discussion and Decision
                                    I. Timeliness of Appeal
[7]   Fraze contends “the Order of the trial court directing Fraze to vacate the

      premises and install a septic system should be reversed.” Appellant’s Brief at


      Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CC-982 | February 13, 2017   Page 6 of 14
      31. Before we address the merits of her appeal, however, we must address the

      Health Department’s contention that her appeal is untimely.


[8]   We begin with the statutes that control the procedure herein. Indiana Code

      section 16-41-20-1 defines a dwelling as “unfit for human habitation” if it is

      “dangerous and detrimental to life or health” for any of several reasons,

      including “[d]efects in the drainage, plumbing, lighting, ventilation, or

      construction,” or the existence of “an unsanitary condition that is likely to

      cause sickness among occupants of the dwelling.” Whenever the appropriate

      entity3 determines that a dwelling is unfit for human habitation, that entity

      “may issue an order requiring all persons living in the dwelling to vacate the

      dwelling within not less than five (5) days and not more than fifteen (15) days.”

      Ind. Code § 16-41-20-4. The entity issuing an order to vacate “shall, for a good

      reason, extend the time within which to comply with the order[,]” Ind. Code §

      16-41-20-5(a), and may revoke the order if it is satisfied the danger has ceased to

      exist and the dwelling is fit for habitation, Ind. Code § 16-41-20-5(b). The entity

      may also declare a dwelling that is unfit for human habitation a public nuisance

      and order, among other things, “the plumbing, sewerage, drainage, light, or

      ventilation of the dwelling” be “removed, abated, suspended, altered,

      improved, or purified[.]” Ind. Code § 16-41-20-6.




      3
       This could be the state board of health, a local board of health, or the county health officer. See, e.g., Ind.
      Code § 16-41-20-4. Here, it is the Floyd County Health Department.

      Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CC-982 | February 13, 2017               Page 7 of 14
[9]    A person who is the subject of an order issued under Indiana Code chapter 16-

       41-20 may, within ten days of the order, file a petition in circuit or superior

       court seeking review of the order. Ind. Code § 16-41-20-9(a). “The court shall

       hear the appeal. The court’s decision is final.” Ind. Code § 16-41-20-9(b). If no

       appeal is taken within ten days, the order of the issuing entity “is final and

       conclusive.” Ind. Code § 16-41-20-11(c).


[10]   Here, the Health Department found Fraze’s dwelling unfit for human

       habitation in part due to defects in the plumbing and the existence on the

       premises of an unsanitary condition in the form of an unsatisfactory and illegal

       waste disposal system. The Health Department also found Fraze’s dwelling to

       be a public nuisance. Accordingly, the Health Department issued both an order

       to vacate and an order to abate. Fraze requested an extension of time to

       comply with the order to vacate and then filed a petition for judicial review

       within ten days of the order to abate. The trial court held an emergency

       hearing, at the conclusion of which it entered an order that stated, “[t]he Court

       finds the [Health Department] properly and timely filed it Order to Abate and

       Order to Vacate.” Appellee’s App. Vol. 2 at 2. The trial court, therefore,

       affirmed the Health Department’s orders, although it extended the time for

       Fraze to comply with the order to vacate in order to give her time to comply

       with the order to abate. Pursuant to Indiana Code section 16-41-20-9(b), the

       court’s decision on judicial review of the Health Department’s orders was final.


[11]   Because the trial court’s order on February 4, 2010, was a final decision

       regarding the propriety and validity of the Health Department’s orders, Fraze

       Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CC-982 | February 13, 2017   Page 8 of 14
would have needed to file a motion to correct error with the trial court or a

notice of appeal with this court within thirty days in order to challenge those

orders further. See Ind. Trial Rule 59(C); Ind. Appellate Rule 9(A)(1). She did

not do so. Therefore, she may not now challenge the merits of whether or not

she must improve the sewerage – that issue was settled by the trial court’s 2010

order.4 The proceedings that followed in the next six years were essentially a

series of compliance hearings. They were not conducted to determine if Fraze

had to improve her property in order to make it fit for habitation, but whether

she had in fact done so or was at least taking affirmative steps toward doing so.

For reasons not completely apparent to us from the state of the record provided,

the trial court repeatedly granted Fraze additional time to comply with the

Health Department’s orders. She has, however, never been relieved of her

obligation to abate the issue. Therefore, the only issue we may address in this

appeal is whether the trial court properly granted judgment to the Health

Department enforcing its prior order.5




4
  The trial court made a similar conclusion in its March 8, 2016, order, noting Fraze had already been
ordered by the court to establish a permanent sewage disposal plan if she intended to continue living on the
land and concluding that because she had not appealed that order, she can no longer challenge the substance
of the order. Fraze’s contention that because the Chronological Case Summary does not list any order in this
case as a “Final Order or a Judgment,” there has been no such final judgment, is incorrect. A final judgment
is not a final judgment because the order is specifically designated as such; it is final if it meets the definition of a
“final judgment” in the appellate rules. For our purposes, a judgment is a final judgment if it “disposes of all
claims as to all parties.” App. R. 2(H)(1). The trial court’s order of February 4, 2010, disposed of the only
claim before the court on judicial review: whether the Health Department orders were valid and enforceable.
5
  Thus, we will not address, for example, Fraze’s apparent late-in-the-game assertion that she does not have
to comply with the order to abate because she is in fact operating a campground or because the RV in which
she has lived for at least seventeen years is not a permanent structure subject to the sewage disposal
regulations.

Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CC-982 | February 13, 2017                    Page 9 of 14
                       II. Judgment for the Health Department
                                         A. Standard of Review
[12]   Fraze appeals from the trial court’s denial of her motion to correct error. The

       motion to correct error was addressed to the trial court’s grant of summary

       judgment to the Health Department upon determining the prior order to vacate

       should be enforced.6


[13]   We generally review a trial court’s ruling on a motion to correct error for an

       abuse of discretion. Santelli v. Rahmatullah, 993 N.E.2d 167, 173 (Ind. 2013).

       In so doing, we afford the trial court’s decision “a strong presumption of

       correctness.” Id. (citation omitted). We reverse only where the trial court’s

       judgment is clearly against the logic and effect of the facts and circumstances

       before it or where the trial court errs on a matter of law. Perkinson v. Perkinson,

       989 N.E.2d 758, 761 (Ind. 2013). In making our determination, we may neither

       reweigh the evidence nor judge the credibility of witnesses. Volunteers of Am. v.

       Premier Auto Acceptance Corp., 755 N.E.2d 656, 658 (Ind. Ct. App. 2011).

       Instead, we look at the record to determine if: “(a) the trial court abused its

       judicial discretion; (b) a flagrant injustice has been done to the appellant; or (c)




       6
         We have our doubts as to whether a motion for summary judgment was the appropriate vehicle to bring this
       case to a resolution at this stage since the Health Department was requesting relief with respect to a judgment
       it already had, but we focus on the substance of the relief requested: whether or not a previously issued order
       should be enforced.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CC-982 | February 13, 2017          Page 10 of 14
       a very strong case for relief from the trial court’s [order] . . . has been made by

       the appellant.” Id. (alterations in original).


[14]   On review of a motion for summary judgment, our standard is the same as that

       of the trial court: relying only on the evidence designated by the parties and

       construing all facts and reasonable inferences in favor of the non-moving party,

       we will affirm the grant of summary judgment “if the designated evidentiary

       matter shows that there is no genuine issue as to any material fact and that the

       moving party is entitled to judgment as a matter of law.” Ind. Trial Rule 56(C);

       City of Beech Grove v. Beloat, 50 N.E.3d 135, 137 (Ind. 2016). On appeal from the

       grant of summary judgment, the non-moving party has the burden of

       persuading us that the trial court’s ruling was erroneous. Hughley v. State, 15

       N.E.3d 1000, 1003 (Ind. 2014). Although findings in a summary judgment

       order offer valuable insight into the trial court’s rationale, they are not required

       in summary judgment proceedings and are not binding on appeal. Wooten v.

       Caesars Riverboat Casino, LLC, 63 N.E.3d 1069, 1073 (Ind. Ct. App. 2016).


                           B. Denial of Motion to Correct Error
[15]   The sole issue on appeal is whether the trial court abused its discretion in

       denying the motion to correct error because Fraze should not have to comply

       with the Health Department’s orders.


[16]   Based upon our review of the record, we cannot say the trial court abused its

       discretion. The trial court addressed each of Fraze’s contentions, even those it

       was not obligated to address because they had long-ago been decided. The

       Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CC-982 | February 13, 2017   Page 11 of 14
       court noted that Fraze represented to the court at a review hearing in October

       2010 she had contacted an expert regarding a plan for installing a septic system.

       The trial court ordered Fraze to consult with her expert to submit a complete

       plan and coordinate approval of the plan; however, she never completed the

       process so as to obtain a final decision by the Health Department as to a

       proposed septic system. Instead, she continued to reside in her RV using the

       existing holding tank in defiance of the Health Department’s orders which were

       confirmed by the trial court on judicial review. When finally pressed five years

       later to either actually abate the problem or vacate the premises, Fraze asked

       the trial court to find her exempt from the requirement that she install a

       conforming residential sewage disposal system for any number of reasons,

       including prohibitive cost, impracticability due to the topography of her land,

       and inapplicability because her living situation is not subject to the sewage

       disposal requirements, as well as asserting various purported constitutional

       claims.


[17]   “If any conditions preclude the installation of a residential on-site sewage

       system . . .,” the local board of health may approve a specific application

       requesting the use of another residential on-site sewage system technology if

       written approval is obtained from the state department of health. 410 Ind.

       Admin. Code 6-8.3-52(g). It does not appear that Fraze ever made an

       application to the Health Department seeking approval of an alternate system.

       As the trial court noted, she is now asking the trial court to approve an alternate

       system from that required by the regulations “that only the Floyd County


       Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CC-982 | February 13, 2017   Page 12 of 14
       Health Department or the State of Indiana has the right to approve.”

       Appellant’s App. Vol. 1 at 22. This failure to exhaust administrative remedies

       precludes the trial court’s action on Fraze’s request to obtain relief from the

       Health Department’s orders. We require pursuit of administrative remedies

       before resort to the courts to avoid premature litigation and allow

       administrative agencies to correct their own errors. Carter v. Nugent Sand Co.,

       925 N.E.2d 356, 360 (Ind. 2010). For this reason, too, Fraze’s constitutional

       arguments are unavailable at this juncture. “Even if the ground of complaint is

       the unconstitutionality of the statute, which may be beyond the agency’s power

       to resolve, exhaustion may still be required because administrative action may

       resolve the case on other grounds without confronting broader legal issues.” Id.

       (quotation omitted).


[18]   The Health Department determined in 2010 that Fraze’s dwelling was unfit for

       human habitation in its existing state, and ordered her to fix the problem or

       vacate the premises. The trial court affirmed that determination on judicial

       review and yet afforded Fraze years to fix the problem without requiring her to

       vacate the premises. Despite this, Fraze has not shown that she has fixed the

       problem in the ensuing six years, nor has she taken the appropriate steps to be

       relieved of the obligation to fix the problem. Given these lengthy proceedings

       and the grace extended to Fraze throughout, we cannot say a “flagrant

       injustice” has been done to Fraze by the trial court finally enforcing its order of

       six years ago, nor has she made a “very strong case for relief” from the trial

       court’s order that she vacate the premises and be enjoined from using the land


       Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CC-982 | February 13, 2017   Page 13 of 14
       as a residence until and unless she installs an on-site sewage disposal system

       approved by the Health Department. Volunteers of Am., 755 N.E.2d at 658.



                                               Conclusion
[19]   The trial court did not abuse its discretion in denying Fraze’s motion to correct

       error, and the trial court’s order of March 8, 2016, is affirmed.


[20]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CC-982 | February 13, 2017   Page 14 of 14
