MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                                FILED
Memorandum Decision shall not be regarded as                             Apr 20 2020, 9:06 am
precedent or cited before any court except for the
                                                                                CLERK
purpose of establishing the defense of res judicata,                      Indiana Supreme Court
                                                                             Court of Appeals
collateral estoppel, or the law of the case.                                   and Tax Court




APPELLANT PRO SE                                       ATTORNEY FOR APPELLEE
Marcius Strawhorn                                      Stuart K Weliever
Hillsboro, Indiana                                     Henthorn, Harris, Weliever & Petrie
                                                       Crawfordsville, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Marcius Strawhorn and HSD of                               April 20, 2020
Central Indiana, LLC,                                      Court of Appeals Case No.
Appellants-Petitioners,                                    19A-MI-893
                                                           Appeal from the Fountain Circuit
        v.                                                 Court
                                                           The Hon. Stephanie S. Campbell,
Town of Hillsboro, Indiana,                                Judge
Appellee-Respondent.                                       Trial Court Cause No.
                                                           23C01-1812-MI-489



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-MI-893 | April 20, 2020                     Page 1 of 11
                                              Case Summary
[1]   Marcius Strawhorn lives in a house he is purchasing on contract from HSD of

      Central Indiana, LLC1 (“the Property”), in Hillsboro (“the Town”). On

      September 15, 2018, the Town issued Strawhorn a citation pursuant to Town

      Ordinance 2017-04 (“the Nuisance Ordinance”), identifying overgrowth,

      multiple unplated vehicles, and trash on the Property. Following a hearing, the

      trial court found Strawhorn and HSD to be in violation of the Nuisance

      Ordinance, imposed a fine retroactive to the date of the citation, ordered that

      they pay the Town’s attorney’s fees, and authorized the Town to take measures

      to abate the nuisance at Strawhorn’s and HSD’s cost. Strawhorn contends that

      the Town failed to establish that he violated the Nuisance Ordinance and that

      the Nuisance Ordinance was unfairly enforced against him because it was not

      enforced against other properties that were allegedly worse. Because we

      disagree, we affirm.


                               Facts and Procedural History
[2]   As of mid-September of 2018, the Property was overgrown with shrubs and

      weeds and had two vehicles and “a lot of trash” in the driveway, which trash

      consisted of car parts, broken toys, bicycles, and similar items. Tr. Vol. II p. 6.

      There were also four vehicles behind the structure, hidden by weeds, which

      were not plated and had been there more than thirty days. The Town received




      1
          HSD does not participate in this appeal.



      Court of Appeals of Indiana | Memorandum Decision 19A-MI-893 | April 20, 2020   Page 2 of 11
      a complaint regarding the Property, and, on September 15, 2018, Deputy Town

      Marshal James Clark delivered a “Notice to Abate a Nuisance” (“the Notice”)

      to the Property at the direction of the Town Council. Ex. 1. The Notice

      indicated that the Property represented a public nuisance due to tall grass, trash,

      vehicles, and overgrown trees and shrubs.

[3]   On October 12, 2018, the Town’s attorney sent a letter to Strawhorn notifying

      him that he had not yet abated the nuisance on the Property and that the Town

      reserved the right to pursue any and all legal remedies available to it if the

      nuisance was not abated on or before October 29, 2018. On November 14,

      2018, the Town’s attorney sent a letter to Gary Hamand, one of the members of

      HSD, informing him that the Town intended to commence litigation if the

      nuisance on the Property was not abated. On December 20, 2018, the Town

      petitioned for the abatement and injunction of the nuisance on the Property

      (“the Petition”).

[4]   On February 21, 2019, the trial court held a hearing on the Petition. Deputy

      Clark testified that he had driven by the Property on the morning of the hearing

      and that there were still vehicles on it which had not been moved in a

      considerable amount of time and were neither plated nor operational. Town

      Council member Edward Moyer testified that he had visited the Property on

      February 19, 2019, and had taken several photographs and that it still contained

      trash and vehicles and was “an eyesore to the community[.]” Tr. Vol. II p. 14.

      The photographs taken by Moyer showed multiple broken bicycles in the

      driveway along with other trash and multiple vehicles in the driveway and



      Court of Appeals of Indiana | Memorandum Decision 19A-MI-893 | April 20, 2020   Page 3 of 11
      backyard. Moyer indicated that the vehicles in the backyard were visible from

      public property and that the Town Council believed the Property, in its current

      state, to be a danger to public health and safety; potentially injurious to public

      health; offensive to the senses; and an obstruction to the free use of other

      property in the area. Strawhorn acknowledged that there were still three

      unplated vehicles in the Property’s driveway which had not moved in the

      previous thirty days.

[5]   On March 17, 2019, the trial court granted the Petition, ordering that (1) HSD

      and Strawhorn be assessed a fifty-dollar-per-day fine dating to September 15,

      2018, for a then-total of $7900.00; (2) HSD and Strawhorn pay $1000.00 in

      attorney’s fees to the Town’s law firm; and (3) the Town was authorized to take

      any and all actions necessary to abate the nuisance, with the costs to be assessed

      to HSD and Strawhorn.


                                 Discussion and Decision
[6]   As an initial matter, the Town suggests in a footnote that Strawhorn’s appeal

      should be dismissed as untimely filed. Strawhorn insists that his notice of

      appeal was, in fact, timely filed. While it appears possible that Strawhorn’s

      notice of appeal was untimely filed, we choose to disregard any procedural

      anomaly and reach the merits of his appeal.

              Indiana’s rules and precedent give reviewing courts authority “to
              deviate from the exact strictures” of the appellate rules when
              justice requires. In re Howell, 9 N.E.3d 145, 145 (Ind. 2014).
              “Although our procedural rules are extremely important … they
              are merely a means for achieving the ultimate end of orderly and


      Court of Appeals of Indiana | Memorandum Decision 19A-MI-893 | April 20, 2020   Page 4 of 11
              speedy justice.” American States Ins. Co. v. State ex rel. Jennings, 258
              Ind. 637, 640, 283 N.E.2d 529, 531 (1972). See also App. R. 1
              (“The Court may, upon the motion of a party or the Court’s own
              motion, permit deviation from these Rules.”). This discretionary
              authority over the appellate rules allows us to achieve our
              preference for “decid[ing] cases on their merits rather than
              dismissing them on procedural grounds.” Adoption of O.R., 16
              N.E.3d at 972 (citation omitted). See also In re Adoption of T.L., 4
              N.E.3d 658, 661 n.2 (Ind. 2014) (considering merits after denying
              appellees’ motion to dismiss based on procedural defect)[.]
      In re D.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574, 579 (Ind. 2017). So, given

      our oft-stated preference to decide cases on the merits and in the interest of

      avoiding probable additional litigation in this case, we decline the Town’s

      invitation to dismiss Strawhorn’s appeal.

[7]   That said, where, as here, the trial court sua sponte enters specific findings of fact

      and conclusions, we review its findings and conclusions to determine whether

      the evidence supports the findings, and whether the findings support the

      judgment. Fowler v. Perry, 830 N.E.2d 97, 102 (Ind. Ct. App. 2005). We will set

      aside the trial court’s findings and conclusions only if they are clearly

      erroneous. Id. A judgment is clearly erroneous when a review of the record

      leaves us with a firm conviction that a mistake had been made. Id. We neither

      reweigh the evidence nor assess the witnesses’ credibility, and we consider only

      the evidence most favorable to the judgment. Id. Moreover, findings made sua

      sponte control only the issues that they cover, while a general judgment will

      control the issues about which there are no findings. Id. “A general judgment

      entered with findings will be affirmed if it can be sustained on any legal theory

      supported by the evidence.” Id.


      Court of Appeals of Indiana | Memorandum Decision 19A-MI-893 | April 20, 2020   Page 5 of 11
[8]    It is well-established under Indiana law that a municipality has the inherent

       power to protect the comfort, health, convenience, good order, and general

       welfare of its inhabitants. See, e.g., Crawfordsville v. Braden, 130 Ind 149, 28 N.E.

       849, 851 (Ind. 1891). Moreover, a municipality may bring a civil action if a

       person violates an ordinance regulating or prohibiting a condition or use of

       property. Ind. Code § 36-1-6-4(a).

[9]    Indiana Code section 32-30-6-6 defines a nuisance as follows:

               Whatever is:
                   1. injurious to health;
                   2. indecent;
                   3. offensive to the senses; or
                   4. an obstruction to the free use of property;
               so as essentially to interfere with the comfortable enjoyment of
               life or property, is a nuisance, and the subject of an action.
       Indiana Code section 32-30-6-7(b) further authorizes an action to abate or

       enjoin a nuisance to be brought by an attorney of any city or town in which a

       nuisance exists. The Town adopted the Nuisance Ordinance in December of

       2017, to protect the health, safety, welfare and property values of Hillsboro

       residents and property. Appellee’s App. Vol. II. pp. 13-31. The Nuisance

       Ordinance and Indiana Code section 32-30-6-6 form the basis for the Petition.

[10]   Generally, it is in the purview of the trial court to determine whether, under all

       of the facts and circumstances, the conditions constitute a nuisance within the

       provisions of the statute. Davoust v. Mitchell, 146 Ind. App. 536, 541, 27 N.E.2d

       332, 335 (1970). In determining if nuisance conditions exist, the relevant


       Court of Appeals of Indiana | Memorandum Decision 19A-MI-893 | April 20, 2020   Page 6 of 11
       inquiry is whether the thing complained of produces a condition as in the

       judgment of reasonable persons is naturally productive of actual physical

       discomfort to persons of ordinary sensibility, tastes, and habits. Wendt v.

       Kerkhof, 594 N.E.2d 795, 797 (Ind. Ct. App. 1992), trans. denied.

                     I. Whether the Trial Court’s Judgment is
                         Supported by Sufficient Evidence
                                  A. Public or Private Nuisance
[11]   Strawhorn contends that the Town established, at most, that he maintained a

       private nuisance, which he argues is not covered by Indiana Code section 32-

       30-6-6 or the Nuisance Ordinance. “A public nuisance affects an entire

       neighborhood or community, while a private nuisance affects only one

       individual or a determinate number of people.” Scheckel v. NLI, Inc., 953

       N.E.2d 133, 138 (Ind. Ct. App. 2011). Strawhorn, however, did not make this

       argument in the trial court and so has waived it for appellate review. It is well-

       settled that “[f]ailure to raise an issue before the trial court will result in waiver

       of that issue.” Heaphy v. Ogle, 896 N.E.2d 551, 555 (Ind. Ct. App. 2008). In

       any event, Indiana Code section 32-30-6-6 does not draw any distinction

       between public and private nuisance, and the allegations regarding the

       condition of the Property easily qualify as affecting the neighborhood or

       community, if true. Visible overgrowth and the presence of trash and multiple

       unplated vehicles are not harms that are limited to one individual or a

       determinate number of persons when they can be seen by anybody passing the

       Property. See Miller v. Town of Syracuse, 168 Ind. 230, 80 N.E. 411, 411 (1907)



       Court of Appeals of Indiana | Memorandum Decision 19A-MI-893 | April 20, 2020   Page 7 of 11
       (“Anything offensive to the sight, smell, or hearing, erected or carried on in or

       near a public place where the people dwell or pass, or have the right to pass, to

       their annoyance, is a nuisance at common law.”).

                                 B. Sufficiency of the Evidence
[12]   Strawhorn essentially argues that the Town failed to establish that he was in

       violation of the Nuisance Ordinance because he had abated any nuisance by the

       time of the hearing. We disagree, concluding that the Town produced sufficient

       evidence that the conditions on the Property violated the Nuisance Ordinance

       throughout this proceeding below.

[13]   Deputy Clark testified that on September 15, 2018, the condition of the

       Property was that it was overgrown with weeds and shrubs and there were two

       cars in the driveway, along with car parts and broken toys and bicycles. Deputy

       Clark further testified that there were additional cars in the back which were not

       visible because of weeds. At that time, Strawhorn was issued the Notice, in

       which he was notified that he was in violation of provisions in the Nuisance

       Ordinance relating to the trash, overgrown vegetation, and abandoned vehicles

       Indiana Code section 9-13-2-1 provides, in part, that an abandoned vehicle

       includes “[a] vehicle that is at least three (3) model years old, is mechanically

       inoperable, and is left on private property continuously in a location visible

       from public property for more than 20 days.”

[14]   Even if the overgrowth and some of the trash had been abated by the time of the

       hearing on February 21, 2019, Strawhorn himself testified that (1) there were

       still three vehicles on the Property that were not plated and had not been moved


       Court of Appeals of Indiana | Memorandum Decision 19A-MI-893 | April 20, 2020   Page 8 of 11
       in the last thirty days and (2) there was still trash in the driveway. Moreover,

       the vehicles in the backyard were now visible from public property due to the

       clearing of the overgrowth. The Town admitted photographic evidence of the

       vehicles and trash that remained on the Property as of February 19, 2019,

       which trash included several broken bicycles and a large trash container in the

       driveway. Moyer testified that the conditions at the Property still constituted a

       danger to public health and safety and were potentially injurious to public

       health. We conclude that the Town produced evidence sufficient to sustain a

       finding that Strawhorn was maintaining a nuisance on the Property at all times.

[15]   Strawhorn points to evidence that he had plated some of his vehicles and

       removed some of the trash. Even if this evidence were believed, it fails to

       account for evidence of other vehicles that had not been plated and trash that

       was still visible in the driveway as of the final hearing. Strawhorn’s argument is

       an invitation to reweigh the evidence, which we will not do. See Fowler, 830

       N.E.2d at 102.

          II. Whether Enforcement of the Nuisance Ordinance
               Violates Strawhorn’s Due Process Rights
[16]   Strawhorn contends that the enforcement of the Nuisance Ordinance against

       him violates his constitutional due process rights. Strawhorn’s specific

       arguments seem to be that he has valid reasons for having unplated vehicles and

       broken bicycles on the Property and that the Nuisance Ordinance is

       inconsistently enforced, with him being singled out while other properties in the

       Town are ignored.



       Court of Appeals of Indiana | Memorandum Decision 19A-MI-893 | April 20, 2020   Page 9 of 11
[17]   Ordinances, like statutes, are presumed to be constitutional. Gul v. City of

       Bloomington, 22 N.E.3d 853, 862 (Ind. Ct. App 2014), trans. denied. If

       reasonably avoidable, we will not attribute unconstitutional intention to the

       drafters of an ordinance. Price v. State, 622 N.E.2d 954, 963 (Ind. 1993). That

       said, Strawhorn has failed to make a cogent argument to support this claim.

       Indiana Appellate Rule 46(A)(8) provides, in part, as follows:

                   (a) The argument must contain the contentions of the
                   appellant on the issues presented, supported by cogent
                   reasoning. Each contention must be supported by citations to
                   the authorities, statutes, and the Appendix or parts of the
                   Record on Appeal relied on, in accordance with Rule 22.
                   (b) The argument must include for each issue a concise
                   statement of the applicable standard of review; this statement
                   may appear in the discussion of each issue or under a separate
                   heading placed before the discussion of the issues. In
                   addition, the argument must include a brief statement of the
                   procedural and substantive facts necessary for consideration
                   of the issues presented on appeal, including a statement of
                   how the issues relevant to the appeal were raised and resolved
                   by any Administrative Agency or trial court.
[18]   Strawhorn cites to the older and current versions of the Nuisance Ordinance but

       cites to no case or constitutional provision to support this argument or provide

       us with a standard of review. While we will not develop a constitutional

       argument on Strawhorn’s behalf, we will briefly address his specific claims

       nonetheless.

[19]   Strawhorn maintains that he has legitimate reasons for keeping so many

       vehicles and broken bicycles on the Property, i.e., he keeps the vehicles in case

       one of his grandchildren needs one at some point, and one of those


       Court of Appeals of Indiana | Memorandum Decision 19A-MI-893 | April 20, 2020   Page 10 of 11
       grandchildren enjoys tinkering with the bicycles. The reasons he cites have no

       evidentiary support in the record, however, and, even if they did, Strawhorn

       does not explain why the trial court would have been obligated to credit them.

       Strawhorn also contends that the Nuisance Ordinance is being unfairly

       enforced against him while the Town is ignoring worse transgressors. Deputy

       Clark testified, however, that the Town had issued similar citations to other

       properties. When questioned by Strawhorn about a property “at the corner of

       Cherry and Park” that was allegedly “nothing but weeds and trees[,]” Deputy

       Clark did acknowledge that he had never issued a citation to it. Tr. Vol. II p. 8.

       That said, even if we assume that Strawhorn’s questioning paints an accurate

       picture of the condition of that property, there is no indication that it held

       anything like the multiple unplated vehicles and trash observed on the Property.

       Because Strawhorn’s arguments are supported by neither the law nor the facts,

       he has failed to establish that the Town’s enforcement of the Nuisance

       Ordinance against him violated his due process rights.

[20]   The judgment of the trial court is affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-MI-893 | April 20, 2020   Page 11 of 11
