An unsafe building in a northern Indiana lake town will be demolished after the Indiana Court of Appeals affirmed a demolition order for the vacant structure.
A building owned by The 27 Group in Culver was deemed unsafe pursuant to the town’s unsafe building ordinance and was eventually ordered for demolition after no action was taken to repair the property. Sitting vacant for years in a residential area on the town’s main street, the building was found by the town to be a fire hazard and hazardous to public health due to excessive mold and trash, among other things.
Following Culver’s filing of a complaint and application for injunction requiring 27 Group to repair the property, the Marshall Circuit Court deemed the building a public nuisance and unsafe, ordering its demolition. If the property wasn’t demolished by its owners, the trial court added, Culver may demolish it and recoup expense from 27 Group.
Property owners Scotty VanHawk and Katie Delacruz appealed, arguing the order was clearly erroneous and that Culver should not be awarded appellate attorneys fees.
But the Indiana Court of Appeals affirmed the demolition order under the Restatement (Second) of Torts , though it declined to award Culver appellate damages in Scotty VanHawk and The 27 Group, Inc. v. Town of Culver, Indiana and Culver Building Commissioner, 19A-CC-408. https://www.in.gov/judiciary/opinions/pdf/11261901mgr.pdf
The appellate panel first concluded that the findings supported the conclusion that the property was a public nuisance and that its deteriorating condition was a public hazard. Likewise, the findings demonstrated that the property’s offensive emanating odor “affects the peace, safety, and comfort” of residents and visitors who walk along the main street.
The appellate court declined, however, to award Culver its requested appellate damages pursuant to Indiana Appellate Rule 66(E), under which the town argued that 27 Group acted in procedural bad faith by omitting in its appellate brief the fact that VanHawk disclaimed all interest in the disputed property and chose not to participate in the hearing.
“Culver maintains that Mr. VanHawk did not truly understand what the case was about until after the first hearing and then decided it did not pertain to him and ‘[n]evertheless, he didn’t call the trial court and tell them to cancel the real time transcription and go on without him. [Instead], he left everyone to continue to incur expenses and he dragged out the proceedings,’” Judge Margret Robb wrote for the appellate court. “Culver’s argument here is problematic.
“Culver never attempted to pierce the corporate veil, nor did it allege that Mr. VanHawk had corporate assets,” Robb continued. “Therefore, there was never any basis for personal liability, yet Culver sporadically argues that Mr. VanHawk is subject to liability despite conceding that this is just an in rem action.
“…Culver’s decision to file an independent civil action to obtain an order to demolish the Property was unnecessary and, at oral argument, Culver acknowledged that it was taking a ‘belt and suspenders’ approach,” the appellate court concluded. “For this sole reason, we decline to award appellate damages to Culver.”