Indianapolis’ Oaktree Apartments demolition order affirmed

A demolition order for a northeast-side Indianapolis apartment complex vacant for more than five years was affirmed Thursday by the Indiana Court of Appeals, which stopped short of ordering the dilapidated property’s owners in England to pay the city’s legal fees in long-running nuisance litigation.

The blighted 19-acre property at the southeast corner of 42nd Street and Post Road once contained 336 apartment units, but the units have been vacant since 2014, and the city has declared them a threat to public health, safety and welfare. As this case was being appealed, Indianapolis separately began eminent domain proceedings seeking to acquire and demolish the empty buildings.

The Marion Superior Court in July 2018 granted the city’s petition for contempt, alleging owners Indy Diamond LLC had violated an agreed judgment under which the owners would comply with prior court orders to secure the property, agree to all code violations and pay a $10,000 fine. As a sanction, the court ordered Indy Diamond to demolish all structures by Aug. 30, 2018 or close on the sale of the property.

Indy Diamond argued on appeal that the demolition order is an impermissible sanction for civil contempt, that it was denied due process and that the trial judge was personally biased against it. “We disagree on all counts,” Judge Terry Crone wrote for the panel in Indy Diamond, LLC v. The City of Indianapolis,18A-OV-2552.

Crone noted Indy Diamond complained that Senior Judge Carol Orbison commented she was “‘thoroughly disgusted” by the condition of the property, that “she felt bad that ‘homeowners in proximity have to look at this dump,’ and that she did not think she had ‘seen something this bad ever,’” among other comments.

“… Indy Diamond has failed to show that the trial judge’s actions or demeanor here were in any way improper or crossed the barrier of impartiality. In fact, there is absolutely no evidence of personal bias, and we find Indy Diamond’s accusation against this trial judge, which is essentially a claim that the judge violated the Indiana Code of Judicial Conduct, to be out of line. Simply put, Indy Diamond is attacking the integrity of this trial judge because she has issued a clear and strong sanction for Indy Diamond’s continual disregard for the court’s authority and its previous order attempting to abate this public nuisance,” Crone wrote. “As far as the judge’s comments that may appear to reflect her personal opinion regarding the condition of the Real Estate, we observe that those comments were made in the context of contempt proceedings and were merely observations supported by the evidence. Such evidence included dozens upon dozens of photographs clearly depicting the deplorable condition of the Real Estate. Indy Diamond has not demonstrated that the trial judge was biased.

“…Although Indy Diamond’s claim of bias against the trial judge is, in our opinion, unfounded and meritless, we choose to exercise restraint and decline to assess appellate damages against Indy Diamond” for an appeal that is meritless, in bad faith or frivolous.

“The trial court had inherent authority to enter a demolition order as a sanction for Indy Diamond’s contempt,” Crone wrote for the panel, “and Indy Diamond has been afforded ample due process in this matter.”

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