A demolition order for a northeast-side Indianapolis apartment complex that’s been vacant for more than five years was affirmed Thursday by the Indiana Court of Appeals, which stopped short of ordering the dilapidated property’s owner in England to pay the city’s legal fees in long-running nuisance litigation.
Oaktree Apartments, a blighted 19-acre property at the southeast corner of 42nd Street and Post Road with 336 apartment units, has been vacant since 2014, and the city has declared the site a threat to public health, safety and welfare. As this case was being appealed, Indianapolis separately began eminent domain proceedings in May seeking to acquire and demolish the empty buildings.
The Marion Superior Court in July 2018 granted the city’s petition for contempt, alleging owner Indy Diamond LLC had violated an agreed judgment under which it 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 a 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.
Indy Diamond complained in the appeal that Senior Judge Carol Orbison had commented that she was “‘thoroughly disgusted” by the condition of the property, and “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.
Crone found no problem with Orbison’s 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,” she wrote in her ruling. “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.”
But Crone stopped short of making Indy Diamond pay the city’s legal costs.
“…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,” she wrote. “The trial court had inherent authority to enter a demolition order as a sanction for Indy Diamond’s contempt, and Indy Diamond has been afforded ample due process in this matter.”