Pursuant to Ind.Appellate Rule 65(D),                                     Nov 27 2013, 5:43 am
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 of the
case.




ATTORNEY FOR APPELLANT:                          ATTORNEY FOR APPELLEE:

ROBERT W. ROCK                                   J. DAVID ROELLGEN
Jones Wallace, LLC                               Kolb Roellgen & Kirchoff, LLP
Evansville, Indiana                              Vincennes, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

MARK A. VALDES and JAMES H. VALDES,              )
                                                 )
        Appellants-Plaintiffs,                   )
                                                 )
               vs.                               )    No. 42A01-1302-PL-88
                                                 )
VINCENNES BUILDING and SAFETY                    )
COMMISSION and the CITY OF VINCENNES,            )
                                                 )
        Appellees-Defendants.                    )


                        APPEAL FROM THE KNOX CIRCUIT COURT
                         The Honorable Sherry B. Gregg Gilmore, Judge
                                Cause No. 42C01-1112-PL-650


                                      November 27, 2013


                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                         Case Summary

       Mark Valdes1 appeals the trial court’s judgment affirming an order by the City of

Vincennes Building and Safety Commission to demolish a hotel owned by him. We affirm.

                                               Issues

       The restated issues before us are:

               I.      whether Mark timely sought judicial review of the
                       demolition order;

               II.     whether the trial court properly denied Mark’s motion
                       to dismiss;

               III.    whether Mark was denied due process of law;

               IV.     whether the trial court properly affirmed the demolition
                       order;

               V.      whether the trial court properly denied Mark’s motion
                       to correct error; and

               VI.     whether the trial court properly required Mark to post a
                       bond of $500,000 in order to stay execution of the
                       demolition order during the pendency of this appeal.

                                               Facts

       On April 5, 2007, the State Department of Homeland Security, Division of Fire and

Building Safety (“DHS”), filed an action for a preliminary and permanent injunction

against Zoheir Maarouf, owner of the Executive Inn in Vincennes, for multiple alleged

violations of fire and building safety codes, following a fire at the property. The action

was filed in the Knox Superior Court. The DHS’s action sought an injunction to force the


1
  James Valdes was involved during the proceedings below but died while they were ongoing; he is still
listed as a named party in this appeal.

                                                  2
closure of the Executive Inn until such time as necessary repairs to the building were made.

On April 17, 2007, the Knox Superior Court granted a preliminary injunction closing the

Executive Inn. Later, however, the Executive Inn was permitted to partially re-open while

repairs to it were made. Maarouf sold the Executive Inn to Mark and James Valdes in July

2007, and the Valdeses were substituted as defendants in the action. On September 29,

2008, DHS filed a “Proposed Plan of Correction” for the Executive Inn. Appellee’s App.

p. 6.

        On August 11, 2009, the City of Vincennes (“the City”) filed a separate action in

Knox Superior Court against the Valdeses, seeking an injunction forcing them to vacate

the Executive Inn based on multiple building safety code violations alleged to have been

found during a City inspection conducted by the City’s building inspector, Chris Eisenhut.

On August 14, 2009, the City’s action was consolidated into the pre-existing DHS case.

On August 19, 2009, the Knox Superior Court entered a preliminary injunction requiring

the full closure and vacating of the Executive Inn until further order of the court, while

permitting the Valdeses, their relatives, and hired repairmen onto the premises to make

repairs. The court also noted in this order that the Valdeses had failed to submit a plan of

correction for the property, despite having been ordered in June 2008 to provide one. The

Valdeses finally submitted such a plan on February 18, 2010.

        On November 3, 2010, while the action before the Knox Superior Court was still

pending, Eisenhut, acting in his official capacity, issued an “Order of Demolition,” stating

that the Executive Inn needed to be demolished because it was an “unsafe building” as

defined by Indiana law, “as it is in an impaired structural condition that makes it unsafe to

                                             3
the public, is a fire hazard and is a hazard to public health.” Appellant’s App. p. 188. This

order required demolition of the Executive Inn within twenty days, subject to the Valdeses’

right to contest the order before the City’s Building and Safety Commission (“the

Commission”).     On November 30, 2010, and December 7, 2010, the Commission

conducted several hours of hearings at which the Valdeses contested the demolition order.

       On January 18, 2011, the Commission conducted public deliberations and orally

announced that it would give the Valdeses until December 1, 2011 to repair the Executive

Inn. On February 22, 2011, the Commission entered a written order expressly modifying

the demolition order, providing the Valdeses until December 1, 2011 “to make all

necessary repairs, remediation, and correction of Code violations to the Executive Inn . . .

.” Id. at 39. The order concluded that, if the Valdeses failed to prove that they had made

the needed repairs to the Executive Inn by December 1, 2011, as evidenced by a certificate

from a licensed architect, that “the Commission shall reconvene a public meeting to

consider further Orders, which may include an Order of Demolition of the Executive Inn.”

Id. at 40.

       The Valdeses failed to submit the required architect’s certificate indicating that they

had repaired the Executive Inn by December 1, 2011. The Commission convened a hearing

on that date to determine the fate of the Executive Inn. Eisenhut testified regarding the

Valdeses’ failure to repair the property. In fact, the Valdeses had not applied for any

permits with respect to any repair work until October 26, 2011; this permit request was for

electrical and drywall work only, which would have fallen well short of the work needed

on the property. The Valdeses’ attorney was not allowed to cross-examine Eisenhut, but

                                              4
James Valdes and his attorney discussed why they believed it would be inappropriate to

order immediate demolition of the Executive Inn.2 James stated that although the property

was mortgage-free, it was impossible to obtain financing for repairs of the property with

the threat of demolition hanging over it. He also stated that he had hopes that an incoming

new mayoral administration for the City, set to take office in January 2012, would be more

receptive to his concerns. He further alleged that the current mayor and a partner had a

particular interest in tearing down the Executive Inn so that an entirely new hotel could be

built on the land, and that one of the Commission members had been overheard in public

discussing this interest. James also claimed never to have received a definitive list of

repairs that needed to be made to the building in order for it not to be demolished.

          At the conclusion of this hearing, the Commission voted to allow the demolition of

the Executive Inn to proceed. On December 9, 2011, the Valdeses filed a complaint for

judicial review of the Commission’s order in the Knox Circuit Court (“the trial court”).

James Valdes passed away in February 2012. On April 27, 2012, Mark Valdes filed a

“Motion to Dismiss,” asserting that the City’s demolition action should be dismissed

because it conflicted with the already existing action in Knox Superior Court that had been

brought by the DHS and later joined in by the City. The City also filed a motion to dismiss,

claiming that Mark did not timely file a challenge to the Commission’s ruling of February

22, 2011. The trial court held a hearing on these motions on October 9, 2012, and




2
    Unfortunately, there are many inaudible portions noted on the transcript of this hearing.

                                                       5
subsequently denied both of them. On December 12, 2012, the trial court issued an order

affirming the Commission’s demolition order.

       On December 14, 2012, having not yet received a copy of the trial court’s December

12, 2012 ruling, Mark filed a motion requesting an evidentiary hearing. On December 21,

2012, the trial court denied Mark’s motion, stating in part “that all parties agreed that the

Court would proceed with a ruling in this cause without further hearing.” App. p. 321. On

January 9, 2013, Mark filed a motion to correct error. The motion was accompanied by an

affidavit from Mark, alleging in pertinent part that Eisenhut had interfered with or refused

to issue permits for repairs to the Executive Inn and had threatened potential contractors

that they would never work in the City again if they performed work for the Valdeses. The

affidavit also restated the assertion that the previous mayor of the City had wanted the land

where the Executive Inn was located for the building of a new hotel for him and his partner,

and that one of the Commission members was aware of this fact.

       On January 29, 2013, the trial court denied Mark’s motion to correct error. Mark

timely initiated an appeal from this ruling and sought a stay of enforcement of the

demolition order pending appeal. The trial court conducted a hearing on this request, and

on May 29, 2013, it entered an order staying enforcement of the demolition order pending

appeal, but also requiring Mark to post an appeal bond of $500,000. Mark filed a motion

with this court challenging the appeal bond requirement, requesting that it be eliminated

altogether or modified to a “very modest amount . . . .” On July 29, 2013, the motions

panel of this court denied Mark’s motion. The case now comes before us fully briefed.

                                         Analysis

                                             6
                             I. Timeliness of Request for Judicial Review

          Before addressing Mark’s arguments, we first address the City’s claim that the

Valdeses did not timely request judicial review of the Commission’s ruling(s) and that the

request for judicial review filed on December 9, 2011, was far too late. Indiana’s Municipal

Unsafe Building Act (“the Act”)3 is codified at Indiana Code Chapter 36-7-9. Indiana Code

Section 36-7-9-8 provides in part:

                   (a) An action taken under section 7(d) or 7(e) of this chapter 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 was issued.

                   (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.

Indiana Code Section 36-7-9-7 in turn provides that a “hearing authority” must hold a

hearing with respect to a demolition order issued by a municipal “enforcement authority”;

in the present case, the Commission was the “hearing authority” and the City’s building

inspection department, through Eisenhut, was the “enforcement authority.” Subsection (d)

of Section 36-7-9-7 specifically provides:

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


3
    This is not an “official” name of the Act.

                                                   7
              (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.

       The City contends that, under Section 36-7-9-8(b), the Valdeses were required to

file a request for judicial review within ten days of either the Commission’s oral ruling of

January 18, 2011, or its written ruling of February 22, 2011.            We disagree.   The

Commission’s rulings of January 18, 2011 and February 22, 2011, modified Eisenhut’s

earlier demolition order by providing the Valdeses with until December 1, 2011 to make

necessary repairs to the Executive Inn, rather than immediately proceeding to demolition.

The Commission did not make a final decision to immediately proceed with the Executive

Inn’s demolition until December 1, 2011. It is that final demolition decision that Mark

now wishes to challenge, and his request for judicial review filed eight days thereafter was

timely. We would agree, however, that Mark is now precluded from indirectly challenging

any part of the February 22, 2011 order, such as the length of time given to remediate the

property, or the fact that the order did not completely rescind the demolition order, or that

the order allegedly did not provide adequate notice of what precisely the Valdeses needed

to do repair-wise in order to avoid demolition. See Quaker Properties, Inc. v. Department

of Unsafe Bldgs. of City of Greendale, Ind., 842 N.E.2d 865, 868 (Ind. Ct. App. 2006)

(holding that party who does not timely seek review of unsafe building order waives right

to judicial review of the order), trans. denied.


                                               8
                                  II. Motion to Dismiss

        We next address whether the trial court properly denied Mark’s motion to dismiss.

On this point, Mark first invokes Indiana Trial Rule 12(B)(8), which “permits dismissal of

an action when ‘[t]he same action [is] pending in another state court of this state.’” Beatty

v. Liberty Mut. Ins. Group, 893 N.E.2d 1079, 1084 (Ind. Ct. App. 2008). However, what

Mark was really seeking by his motion to dismiss was to dismiss the underlying

administrative action by the City. Needless to say, it would ordinarily be odd for a civil

plaintiff to invoke a Trial Rule 12 defense to dismiss his or her own civil action; clearly,

Mark did not want outright dismissal of his petition for judicial review before the trial

court, which would have resulted in the demolition order remaining intact. On its face,

Trial Rule 12(B)(8) would not seem to apply to this situation.

        Regardless, we will address Mark’s argument that the principles underlying Trial

Rule 12(B)(8) should have precluded the City’s administrative action to demolish the

Executive Inn, given the pre-existing Knox Superior Court case initiated by the DHS and

later joined in by the City which sought to force the Valdeses to repair the property. “Trial

Rule 12(B)(8) implements the general principle that, when an action is pending in an

Indiana court, other Indiana courts must defer to that court’s authority over the case.” Id.

This principle applies when the parties, subject matter, and remedies sought are precisely

the same in two different actions, and it also applies when they are only substantially the

same.    Id.   “Courts observe this deference in the interests of fairness to litigants,

comity between and among the courts of this state, and judicial efficiency.” Thacker v.

Bartlett, 785 N.E.2d 621, 625 (Ind. Ct. App. 2003).

                                             9
       Here, although the parties and subject matter of the Knox Superior Court action and

the City’s administrative action are similar, the remedies sought in the two actions are quite

different and not substantially the same. In fact, it appears that the remedy sought in the

administrative action—demolition—was not available in the Knox Superior Court action.

First, the DHS’s authority for bringing its action was derived from Indiana Code Chapter

22-12-7, which permits the DHS to bring administrative and/or trial court actions to enforce

the State’s fire and building safety codes. Indiana Code Section 22-12-7-7 lists the

sanctions that the DHS may seek to impose against owners (or controllers) of property that

are in violation of the fire and building safety codes, which include requiring the owner to

cease and correct the violation(s), requiring persons to leave and stay away from an area

affected by the violation, revoking permits or licenses associated with property, and/or

imposing civil fines against the owner. Nothing in the statute authorizes the DHS to seek

demolition of a property that is in violation of the fire and building safety codes.

       Second, the City relied upon the Act in both issuing the demolition order and in

filing the Knox Superior Court action. The Act permits municipalities to adopt the Act by

ordinance for direct enforcement by municipalities to address the danger of “unoccupied

structures that are not maintained and that constitute a hazard to public health, safety, and

welfare.” Ind. Code § 36-7-9-4.5(a). Indiana Code Section 36-7-9-5 delineates the actions

and orders a municipality’s “enforcement authority” may issue with respect to unsafe

buildings. One such order is for the “demolition and removal of an unsafe building if: (A)

the general condition of the building warrants removal; or (B) the building continues to

require reinspection and additional abatement action after an initial abatement action was

                                             10
taken pursuant to notice and an order . . . .” I.C. § 36-7-9-5(a)(7). It is under this subsection

that Eisenhut had the authority to administratively issue the original demolition order.

Such administrative orders for demolition are subject first to review by a municipal

“hearing authority” under Indiana Code Section 36-7-9-7, and then to judicial review under

Indiana Code Section 36-7-9-8.

       In addition to purely administrative action, subject to judicial review, a municipality

“may bring a civil action regarding unsafe premises in the circuit, superior, or municipal

court of the county.” I.C. § 36-7-9-17(a). This statute further provides:

              A civil action may not be initiated under this section before the
              final date of an order or an extension of an order under section
              5(c) of this chapter requiring:

              (1)     the completion; or

              (2)   a substantial beginning toward accomplishing the
              completion;

              of the required remedial action.

I.C. § 36-7-9-17(b). This language contemplates that the bringing of a civil action is

intended to force a recalcitrant property owner to comply with already-existing

administrative orders. It is under this statute that the City was authorized to file the Knox

Superior Court action. That action specifically was an “emergency” action to force the

Valdeses to comply with previous orders by Eisenhut to immediately vacate the Executive

Inn and to prevent anyone from entering it, which the Valdeses were ignoring. App. p.

283. Ordering the vacating of an unsafe building and preventing anyone else from entering




                                               11
such a building are additional actions a municipality’s “enforcement authority” may take

under Indiana Code Section 36-7-9-5.

       Indiana Code Section 36-7-9-17 also specifies that trial courts “may grant one (1)

or more of the kinds of relief authorized by sections 18 through 22 of this chapter.” I.C. §

36-7-9-17(a). This limited grant of authority seems to indicate that trial courts are not

necessarily empowered to issue any order that a municipality could have issued by itself

under Indiana Code Section 36-7-9-5. No language in sections 18 through 22 refer to a

trial court having the same authority as a municipality has under Section 36-7-9-5, nor do

any of them mention a trial court having the authority to order the demolition of a building.

       The Knox Superior Court action was always aimed towards trying to make the

Executive Inn safe and to force the Valdeses to make needed repairs and not to demolish

it, consistent with the extent of trial court authority regarding unsafe buildings and fire and

building safety regulations under Indiana Code Chapter 36-7-9 and Indiana Code Chapter

22-12-7. Thus, the demolition remedy sought in the purely administrative action by the

City was not substantially the same as, and appears not even to have been a possibility in,

the Knox Superior Court action. The principles underlying Indiana Trial Rule 12(B)(8)

did not preclude the City from administratively seeking demolition of the Executive Inn,

notwithstanding the Knox Superior Court action.

       Mark also invokes the election of remedies doctrine as a basis for precluding the

City’s demolition action, claiming the City had chosen to participate in the Knox Superior

Court action and thus could not bring a separate administrative demolition action. The

election of remedies doctrine is equitable in origin and is intended to prevent excessive and

                                              12
repetitive litigation. McMichael v. Scott County School Dist. No. 2, 784 N.E.2d 1067,

1070 (Ind. Ct. App. 2003). “The doctrine applies when a party who has two co-existing

but inconsistent remedies elects to pursue one remedy to a conclusion rather than sue on

the other remedy.” Id. If there are concurring effectual remedies, choosing one remedy

and prosecuting it without interruption excludes all other remedies. Id.

       Here, it is not clear that the City uninterruptedly prosecuted the Knox Superior Court

action to a definitive conclusion or that the two actions were necessarily conflicting.

Having been provided with copies of the CCS in the Knox Superior Court case and some,

but not all, of the pertinent motions and rulings in that case, the purpose of that case was

to compel remediation to the Executive Inn and/or to prohibit any persons from entering

the property, except for workers or the Valdeses, until the building was brought up to code.

At one point a permanent injunction was sought against the Valdeses, but it does not appear

that one was ever entered.      Rather, there was a preliminary injunction, which was

subsequently modified.

       At the time that Eisenhut filed his demolition order, the City notified the Knox

Superior Court of it. After that date, in December 2010, there was further action in the

Knox Superior Court case consisting of the Valdeses filing a motion asking the court to

find that the Executive Inn “is in compliance with all applicable fire and building safety

codes . . . .” Appellee’s App. p. 15. The Knox Superior Court denied this motion on

January 11, 2011. There is no further action listed in the CCS after this date, aside from

attorney appearances and withdrawals of appearances. It thus appears that the City pursued

the Knox Superior Court action until such time as it became apparent that the Valdeses

                                             13
were not going to adequately remediate the problems at the Executive Inn despite having

several years to do so, at which time it switched tactics and sought demolition of the hotel,

using an administrative procedure that does not seem to have been available to the Knox

Superior Court. We do not believe the City’s actions violated the election of remedies

doctrine.

       Finally, Mark argues that the City’s actions violated the separation of powers

doctrine. Article 3, Section 1 of the Indiana Constitution states, “The powers of the

Government are divided into three separate departments; the Legislative, the Executive

including the Administrative, and the Judicial: and no person, charged with official duties

under one of these departments, shall exercise any of the functions of another, except as in

this Constitution expressly provided.” “The judiciary is one of the three co-equal branches

of government and its independence is essential to an effective running of the government.”

State v. Monfort, 723 N.E.2d 407, 411 (Ind. 2000).           Mark asserts that the City’s

administrative action infringed upon the independence of the Knox Superior Court.

       We observe that it has long been held that the separation of powers doctrine of

Article 3 does not apply to municipalities and their agencies. Willsey v. Newlon, 161 Ind.

App. 332, 333, 316 N.E.2d 390, 391 (1974).             We accept that a municipal-level

administrative agency cannot take action that conflicts with or purports to supersede the

actions of a State trial court. See Indiana Dep’t of Natural Res. v. Newton County, 802

N.E.2d 430, 433 (Ind. 2004) (holding county could not pass ordinances purporting to

regulate State agency activity). As we have discussed, however, there is no inherent

conflict between the Knox Superior Court action and the City’s administrative action, given

                                             14
the different remedies sought in the two actions and the fact that demolition could only be

sought via the administrative action.4

        Whether framed as an issue of comity, election of remedies, or separation of powers,

there was no bar to the City seeking demolition of the Executive Inn through administrative

proceedings under the Act because the action did not irreconcilably conflict with the pre-

existing Knox Superior Court action. The trial court properly denied Mark’s motion to

dismiss.

                                           III. Due Process

        Next, we address Mark’s claim that his procedural due process rights were violated

by the City, the Commission, and the trial court in the issuance and eventual affirmance of

the demolition order. The requirements of due process are not set in stone and may vary

based on the circumstances, in accordance with the balancing test adopted by the Supreme

Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976):

                [I]dentification of the specific dictates of due process generally
                requires consideration of three distinct factors: First, the
                private interest that will be affected by the official action;
                second, the risk of an erroneous deprivation of such interest
                through the procedures used, and the probable value, if any, of
                additional or substitute procedural safeguards; and finally, the
                Government’s interest, including the function involved and the
                fiscal and administrative burdens that the additional or
                substitute procedural safeguard would entail.




4
  If the Knox Superior Court had found the Executive Inn to be adequately repaired, then the City’s seeking
to demolish the building in a separate administrative action would be troublesome, but the court made no
such finding.

                                                    15
The most basic requirement of procedural due process is the right to be heard at a

meaningful time and in a meaningful manner. Parker v. Indiana State Fair Bd., 992 N.E.2d

969, 978 (Ind. Ct. App. 2013). This court has held that, as a general rule, a municipality’s

adherence to the Act’s procedures in addressing unsafe buildings affords a property owner

sufficient due process protection.     Starzenski v. City of Elkhart, 659 N.E.2d 1132,

1139 (Ind. Ct. App. 1996), trans. denied, cert. denied. Although a property owner’s interest

in preservation of his or her property is undeniable, governments have a converse and very

strong police power interest in enforcing building safety regulations, even to the extent of

requiring the demolition of buildings, for purposes of public health, safety, or welfare. See

409 Land Trust v. City of South Bend, 709 N.E.2d 348, 351 (Ind. Ct. App. 1999), trans.

denied.

       Mark alleges that the City’s February 22, 2011 order modifying Eishenhut’s

demolition order to provide the Valdeses until December 1, 2011, to repair the Executive

Inn failed to provide him adequate notice of what needed to be done to save the property

from demolition, because it did not provide a detailed list of precisely what repairs needed

to be performed. As we held earlier, however, the Valdeses waived the ability to challenge

any alleged deficiencies in the February 22, 2011 order by not timely seeking judicial

review of that order. They were not entitled to wait until the December 1, 2011 deadline

passed, and only then attempt to raise a claim that the February 22, 2011 order was

inadequate. Moreover, it appears that there was a list of needed corrective action that was

prepared during the Knox Superior Court proceedings that the Valdeses never completed,

thus giving notice of the numerous deficiencies of the hotel.

                                             16
       Mark also contends that the hearing conducted on December 1, 2011, did not meet

due process requirements because the Valdeses were not permitted to cross-examine

Eisenhut and were not permitted to present any evidence as to their attempts to remediate

the property. Although it is true that the Commission prevented the Valdeses’ attorney

from cross-examining Eisenhut, the transcript of that hearing does not indicate that the

Commission prevented the Valdeses from presenting evidence. Rather, after Eisenhut

testified, one of the Commission members stated, “you’ve heard what the City has said and

what the City Inspector has said, so, I guess that we’d like for you to respond to that and

help us to understand your side.” App. p. 200. The Valdeses’ attorney and James then

made lengthy statements to the Commission regarding efforts to obtain permits, unfruitful

efforts to obtain funding to make needed repairs, claims that they did not have notice of

what needed to be done to the property to make it acceptable, and expressing their hope

that the incoming administration would be more fair to the Valdeses.

       Also, the December 1, 2011 hearing represented the culmination of close to five

years of litigation, beginning with the Knox Superior Court action initiated by DHS in

April 2007. Despite numerous proceedings in that case, as well as two lengthy hearings

before the Commission that resulted in it giving the Valdeses an additional ten months to

repair the Executive Inn, they never were able to do so to the satisfaction of the DHS, the

City, or the Knox Superior Court. Mark does not contend that any of the previous hearings

or proceedings regarding the Executive Inn failed to comply with due process

requirements. The Valdeses had multiple opportunities to argue the case.



                                            17
        Mark also fails to adequately explain how a more “formal” hearing on December 1,

2011, as he claims should have taken place, would have led to more time to attempt to

rehabilitate the Executive Inn. The evidence is that the Valdeses did not even attempt to

seek any permits for repair of the hotel until late October 2011—approximately eight

months after the February 22, 2011 order was issued and just a little over a month before

the deadline for fully repairing the building. The evidence also is clear that, even if those

permits had been granted by Eisenhut as Mark argues they should have been, the work they

would have authorized would have fallen well short of what was necessary to correct the

multiple problems the building had. Even where there are alleged procedural defects in an

administrative proceeding, such errors may be deemed harmless and do not per se require

reversal of a ruling when the record clearly demonstrates that additional process would not

have led to a different result. See Berzins v. Review Bd. Of Indiana Employment Sec.

Div., 439 N.E.2d 1121, 1127-28 (Ind. 1982); Jones v. Housing Auth. of City of South Bend,

915 N.E.2d 490, 497 (Ind. Ct. App. 2009), trans. denied. Such is the case here.5

        Finally, Mark suggests the trial court additionally denied him due process when it

did not hold an evidentiary hearing on his petition for judicial review. We believe Mark

5
  We also note that, as a statutory matter, it is not clear that the Act required that there be any hearing with
respect to the December 1, 2011 demolition order. Indiana Code Section 36-7-9-7(g) provides that if a
hearing authority modifies an enforcement authority’s order, “the hearing authority shall issue a continuous
enforcement order . . . .” (Emphasis added). A “continuous enforcement order” is one that “can be enforced,
including assessment of fees and costs, without the need for additional notice or hearing . . . .” I.C. § 36-7-
9-2. Thus, when the Commission modified the City’s original demolition order by providing the Valdeses
an additional ten months to remediate the Executive Inn, it appears to have been a “continuous enforcement
order” that could have been enforced without any additional hearing.




                                                      18
has waived this claim, or more accurately, invited any alleged error on this point. The

doctrine of invited error prohibits a party from taking advantage of an error that he or she

commits, invites, or which is the natural consequence of his or her own neglect or

misconduct. Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 133 (Ind. 2005). In denying

Mark’s motion to correct error and for an evidentiary hearing, filed after the trial court had

already issued its ruling, the court noted that Mark’s counsel had, in chambers and during

the October 9, 2012 hearing addressing the parties’ motions to dismiss, stated that no

further hearings on the matter would be required. Although we cannot review what Mark’s

counsel said in chambers, the trial court specifically asked at the October 9, 2012 hearing

whether there would be any need for “additional argument beyond today,” and counsel

responded that he had no plans for “any additional hearing and no evidence . . . based upon

the progress of the case up to now.” Tr. pp. 4-5. Counsel then argued, over the City’s

objection, that in order to fairly review the case the trial court would need to review the

hearings from November 30, 2010 and December 7, 2010, but gave no indication that any

further trial court hearing in the case was necessary. Counsel therefore invited the trial

court to rule in this case without conducting an evidentiary hearing, and Mark cannot now

complain about that alleged error.

       We do acknowledge that counsel apparently changed his mind regarding the

necessity of an evidentiary hearing after reviewing the recordings of the November 30,

2010 and December 7, 2010 hearings and believing them to be inaudible in large sections

and finding that none of the exhibits introduced at those hearings had been preserved. We

reiterate our earlier holding that Mark is precluded from seeking judicial review of the

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February 22, 2011 order that resulted from the November 30, 2010 and December 7, 2010

hearings. Thus, the quality of the recording of those hearings and the lack of exhibits from

them is now irrelevant. Indeed, it might have been easier to reconstruct what happened at

those hearings if the Valdeses had immediately sought judicial review of the February 22,

2011 order rather than waiting until December 2011 to do so. The trial court’s task here

solely was to review the propriety of the December 1, 2011 order. Although in its rulings

the court also referred to the earlier proceedings in this case, and the entire background of

this case is indeed helpful in understanding the context of the final demolition order, there

was no need for the trial court to conduct an evidentiary hearing to attempt to reconstruct

the hearings that led to the February 22, 2011 order. As for the December 1, 2011 order,

all the trial court needed to do to satisfy its review obligation was to re-examine the

evidence upon which the Commission acted in issuing that order, which obligation was

fulfilled by reviewing the recording and transcript of the December 1, 2011 hearing. See

Kollar v. Civil City of South Bend, 695 N.E.2d 616, 620 (Ind. Ct. App. 1998) (holding trial

court may satisfy its review obligation under the Act either by conducting an evidentiary

hearing or by reviewing the evidence considered by the municipality), trans. denied. The

manner in which the trial court conducted its judicial review did not violate due process.

                                 IV. Trial Court’s Ruling

       Mark also argues that the trial court erred on the merits in denying his petition for

judicial review. Indiana Code Section 36-7-9-8(c) states that a trial court should review a

municipality’s unsafe building action “de novo.” “De novo” as used in this statute “does

not authorize a trial court to substitute its judgment for that of the agency below.” Id. at

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619. Rather, a trial court should reverse a municipality’s action only if it is “‘(1) arbitrary,

(2) capricious, (3) an abuse of discretion, (4) unsupported by the evidence or (5) in excess

of statutory authority.’” Id. (quoting Uhlir v. Ritz, 255 Ind. 342, 345-46, 264 N.E.2d 312,

314 (1970)).

       Mark’s argument on this issue is brief, and aside from the due process arguments

we have already rejected, boils down to a claim that it was premature to order demolition

of the Executive Inn because there exists a reasonable probability that it can and will be

fully repaired. It is true that when “a building can be reasonably repaired, it may be

improper to order demolition of the property.” 409 Land Trust, 709 N.E.2d at 350.

However, when a property owner has been given ample opportunity to repair a property

but fails to do so within a reasonable period of time, demolition of the property may be

appropriate. Id. This is precisely the situation here, as we have discussed. The Valdeses

had several years in which to adequately rehabilitate the Executive Inn to the point where

it could once again be a viable business property, or even habitable, but failed to do so.

The City need not wait indefinitely for the needed repairs to be made.

       Even assuming the Valdeses should have been issued the permits they requested in

October 2011, that clearly was a case of being a day late and a dollar short. Even if the

work requested by the permits had been performed, it would have been insufficient to make

the Executive Inn conform to all the necessary codes. Although there have been findings

and discussions during the course of the proceedings that the Executive Inn is not “unsafe”

as long as it is not occupied, and it is not currently occupied, a long-vacant building that is

not up to code poses significant public health and safety risks with respect to vagrancy,

                                              21
neighboring buildings, and first responders who might have to address fires or crimes at

the property. The Act specifically includes in its definitions of unsafe buildings one that

is vacant and “not maintained in a manner that would allow human habitation, occupancy,

or use under the requirements of a statute or an ordinance . . . .” I.C. § 36-7-9-4(a)(6). We

cannot find error in the trial court’s ruling that the Commission’s December 1, 2011 order

for demolition of the Executive Inn was not arbitrary, capricious, an abuse of discretion,

unsupported by the evidence, or in excess of statutory authority.

                                 V. Motion to Correct Error

       We now address Mark’s argument that the trial court erred in denying his motion to

correct error. We review rulings on motions to correct error for an abuse of discretion.

Scales v. Scales, 891 N.E.2d 1116, 1120 (Ind. Ct. App. 2008). Much of the motion raised

issues we have already addressed and rejected, such as the trial court’s not holding an

evidentiary hearing, its denial of the motion to dismiss, and that the Executive Inn

purportedly was not “unsafe” because no one currently resided in it.

       The remainder of the motion alleged the existence of newly discovered evidence,

supported by affidavits from Mark and Timothy Minnette, a real estate agent. Motions to

correct error based on the alleged existence of newly discovered evidence are disfavored.

Id. To prevail upon a motion to correct error based on alleged newly discovered evidence,

a party must:

                demonstrate that the evidence could not have been discovered
                and produced at trial with reasonable diligence; that the
                evidence is material, relevant, and not merely cumulative or
                impeaching; that the evidence is not incompetent; that [the
                party] exercised due diligence to discover the evidence in time

                                              22
              for the final hearing; that the evidence is worthy of credit; and,
              that the evidence raises the strong presumption that a different
              result would have been reached upon retrial.

Matzat v. Matzat, 854 N.E.2d 918, 920 (Ind. Ct. App. 2006).

       The alleged newly discovered evidence in this case relates almost entirely to claims

that Eisenhut “stonewalled” attempts to repair the Executive Inn by refusing to issue work

permits and/or by intimidating contractors who proposed to work on the building. Some

of this alleged evidence was in fact related to the Commission during the December 1, 2011

hearing and, thus, was not “newly discovered”; it was already considered and rejected both

the Commission and by the trial court in reviewing the Commission’s demolition order.

Other matters in Mark’s affidavit relate to events dating back to 2009 through December

1, 2011, and it is unclear why such evidence could not have been discovered earlier and

presented to the Commission. Finally, there is one example of alleged intimidation by

Eisenhut that was not and could not have been discovered until after the December 1, 2011

hearing. However, it appears that this evidence was at best merely cumulative of other

evidence of Eisenhut’s alleged interference in the Valdeses’ attempts to repair the

Executive Inn. Moreover, it relates hearsay statements by third parties to the affiants of

things Eisenhut allegedly said to the third parties, not things said to the affiants themselves.

We do not believe the trial court was required to find such evidence to be either “worthy

of credit” or that it raised a “strong presumption” that the result of either the Commission’s

December 1, 2011 hearing or the trial court’s judicial review would have been different if

such evidence had been presented. We cannot say the trial court abused its discretion in

denying the motion to correct error.

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                                     VI. Appeal Bond

       The final argument Mark raises is that the trial court’s required $500,000 appeal

bond as a condition of staying demolition of the Executive Inn during the pendency of this

appeal is excessive. A trial court’s determination as to the amount of a bond as a condition

of staying execution of a judgment during appeal will not be disturbed absent an abuse of

discretion. Kocher v. Gertz, 824 N.E.2d 671, 675 (Ind. 2005). Additionally, our motions

panel has already denied a request by Mark to reduce the amount of the appeal bond.

Although a writing panel of this court is free to disagree with and reverse a decision by our

motions panel, we generally are reluctant to do so in the absence of clear authority

establishing that the motions panel erred as a matter of law. Oxford Fin. Group, Ltd. V.

Evans, 795 N.E.2d 1135, 1141 (Ind. Ct. App. 2003).

       Indiana courts often decline to address the issue of the amount of an appeal bond as

part of a decision on the merits, finding the issue to be moot at that point in the case. See

In re Guardianship of C.M.W., 755 N.E.2d 644, 651-52 (Ind. Ct. App. 2001). Moreover,

Mark has not provided us with a transcript of the trial court hearing on the motion to stay

execution and the City’s request for an appeal bond requirement; we have before us “only

the assertions in the parties’ filed motions, responses, and attachments.” See Kocher, 824

N.E.2d at 675. In such a situation, we cannot say that the trial court abused its discretion

in fixing the amount of the appeal bond. See id.; Anthrop v. Tippecanoe School Corp., 156

Ind. App. 167, 173, 295 N.E.2d 637, 642 (1973). We thus decline to revisit the motions

panel’s decision not to reduce the amount of the appeal bond.



                                             24
                                       Conclusion

       Although Mark timely sought judicial review of the December 1, 2011 demolition

order, he waived claims related to the adequacy of the February 22, 2011 order by not

timely challenging that order. The trial court properly denied Mark’s motion to dismiss

because the administrative action for demolition of the Executive Inn did not irreconcilably

conflict with the pre-existing Knox Superior Court action governing the property. Mark

also has not established that he was denied due process with respect to the ultimate

demolition order. He also has not demonstrated that the trial court erred in affirming the

Commission’s action, denying his motion to correct error, or requiring the posting of a

$500,000 bond to stay enforcement of the demolition order pending appeal. We affirm in

all respects.

       Affirmed.

CRONE, J., and PYLE, J., concur.




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