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Vega v. City of Hammond

Court of Appeals of Indiana

July 7, 2017

Juan Vega, Appellant-Plaintiff,
City of Hammond and City of Hammond Board of Public Works and Safety, Appellees-Defendants.

         Appeal from the Lake Superior Court The Honorable Calvin D. Hawkins, Judge Trial Court Cause No. 45D02-1507-MI-9

          Attorney for Appellant P. Jeffrey Schlesinger Merrillville, Indiana

          Attorneys for Appellees John M. McCrum Robert J. Feldt Kevin T. McNamara Eichhorn & Eichhorn, LLP Hammond, Indiana

          Brown, Judge.

         [¶1] Juan Vega appeals the trial court's order and ruling on his motion to correct errors in favor of the City of Hammond and the City of Hammond Board of Public Works and Safety (the "Board, " and collectively with the City of Hammond, the "Appellees"). Vega raises three issues, one of which we find dispositive and revise and restate as whether the court abused its discretion in granting the Appellees' motion for directed verdict. We reverse and remand.

         Facts and Procedural History

         [¶2] Vega owns 4839 Elm Street, located in Hammond, Indiana. In 2012, Vega permitted Matt Saliga, an inspector for Hammond, to inspect the home, and afterward, on November 9, 2012, the City issued a Notice of Violation to Vega identifying various violations, such as the presence of unsafe conditions and the absence of proper building permits. The property was found to contain an unsafe second floor apartment lacking proper dwelling unit fire protection separation and proper fire resistance rating. The notice also stated that the property was contrary to Hammond zoning laws as to the number of units permitted in the district in question.[1] The Notice stated that Vega must repair or demolish the building to bring it into compliance within thirty days and that failure to do so would result in the Building Commissioner instituting legal proceedings against him.

         [¶3] A hearing before the Board on the Notice of Violation was originally set for November 29, 2012, but the hearing was continued multiple times, first to January 17, 2013, and then to March 14, 2013, as well as May 30, 2013, and August 8, 2013. At that point, the matter "kind of fell into the void for a while and nobody remembered anything about it."[2] Transcript at 121. Eventually, it was set for a hearing before the Board on September 18, 2014, and Vega and his counsel requested a continuance due to a scheduling conflict and because "there is incomplete discovery in this cause, " which was granted. Appellant's Appendix Volume 2 at 51. On November 13, 2014, Saliga and Kris Kantar, who was the City's counsel, appeared before the Board and presented the City's case, in which Saliga tendered his inspection file including findings, photographs and permit research for 4839 Elm Street. Neither Vega nor his counsel appeared at the hearing. The Board unanimously approved "the Findings regarding . . . 4839 Elm . . . ." Appellees' Appendix at 122.

         [¶4] On December 10, 2014, Vega by counsel moved the Board to grant relief from the order of November 13, 2014, asserting that neither Vega nor counsel had been advised that the matter was set for hearing, and the Board vacated the order and reset a hearing for February 26, 2015. Vega's counsel moved for a continuance of that hearing, and the matter was reset on the agreed date of April 30, 2015. "During that time [Vega] and Counsel for [Vega] were to obtain a second inspection and see if any repairs could be made to correct the issues with the property." Id. at 43.

         [¶5] On April 29, 2015, Vega's counsel sent a motion to reassign date and accompanying letter via fax to Kantar, the letter stating that Saliga had not yet performed a second inspection of the property. Id. at 29. The letter noted that counsel had not heard from Saliga "since the communications in early March, " that he had "put in a call to him Tuesday (4/28) but missed him by a couple-of-minutes, " and that he hoped that Saliga's "schedule will permit us to coordinate something in May and, hopefully, have a 'sit-down' in June to see if it's resolvable." Id. The motion to reassign date also indicated that, if word was not received sooner, counsel would appear on April 30, 2015 "between 10-10:30 a.m. instead of 9:00 a.m. due to a medical appointment that counsel needs to attend and anticipates will be completed at approximately 10:00 a.m." and requested that the matter be set for a hearing on the June calendar. Id. at 28.

         [¶6] The Board held the hearing on April 30, 2015, and neither Vega nor counsel appeared. At the hearing, Kantar observed that Vega had requested a continuance, and the matter "has been continued at regular intervals for over two years" and "doesn't ever seem to be going anywhere." Transcript at 122-123.[3] Saliga stated that "[h]e's really made no attempt to schedule this." Id. at 123.[4] Kantar recommended that the Board give Saliga a week to prepare an order, that the Board sign it, and that Vega could then "appeal it if he wants to. Enough is enough." Id. The Board by motion approved that course of action.

         [¶7] On May 6, 2015, Vega's counsel filed a motion for relief and request for hearing stating that Kantar agreed in their conversation on or about February 25, 2015, that she would communicate with Saliga and that Vega's counsel should follow up with an email to Saliga, that counsel sent an email on March 3, 2015, and a fax on March 4, 2015, copying Kantar, that counsel did not receive a reply, and that counsel moved for a continuance as the hearing date approached. The letter to Saliga was attached to the motion as Exhibit 1. The motion also indicated that, on the date of the hearing, following his medical procedure and while en route to City Hall, counsel was advised that the meeting had adjourned. On May 7, 2015, the Board entered its Finding of Fact and Decision ordering Vega to remove the second floor apartment, specifically stating as follows:

[I]n the present case, the illegal second floor apartment is to be removed. During no point in this property's two and a half year history, has it ever been demonstrated that the second floor apartment is legal, safe and compliant with Zoning.
In addition, the record of the hearing is devoid of any evidence that the upstairs apartment was ever lawfully converted into an apartment. In order to be a lawful non conforming use, the use must have "lawfully existed prior to the enactment of a zoning ordinance." The property owner of 4839 Elm have [sic] failed to show, by any evidence, that this conversion was ever performed legally.
Based on the evidence, and law, the 2nd Floor Apartment at 4839 Elm cannot lawfully be occupied in its present condition. Should proper zoning approval be obtained, and the property brought into compliance with all current building and fire codes, this decision could be reconsidered by the Appellees, but at the present moment under the present circumstance, the declaration of the Inspections Department that the property is uninhabitable is AFFIRMED.

         Appellant's Appendix Volume 2 at 47. That same day, the City issued its Findings and Order noting that the Board found that no building permits were applied for or issued for a second-floor apartment as required by the Hammond Municipal Code and that no fire separation between units exists in violation of the International Building Code on fire separation and ordering that "[t]he 2ndfloor apartment must be removed, the property converted back to a single family home and all work must be performed by licensed contractor(s) in the city of Hammond." Id. at 48.

         [¶8] On May 11, 2015, Vega filed a complaint for judicial review pursuant to Ind. Code § 36-7-9-8 in the Lake Superior Court and attached Exhibits A-K, which included a copy of the Board's Findings of Fact and Decision and the City's Findings-Order of May 7, 2015. On June 12, 2015, Vega's counsel conducted a deposition of Saliga in which Saliga acknowledged that he "misspoke" at the April 30, 2015 hearing of the Board when he indicated that he had not been contacted to set up an inspection because at that time he had forgotten about the letter he received from Vega's counsel. Plaintiff's Exhibit 6 at 38.

         [¶9] On March 8, 2016, the court held a judicial review hearing and the parties tendered and the court admitted Joint Exhibit 1, which is a collection of video recordings of the Board meetings in question, including two segments of the November 13, 2014 meeting, as well as the hearings of April 30, 2015, and May 7, 2015. Each segment was played for the court. Following the presentation of the recordings, Vega's counsel offered and the court admitted Plaintiff's Group Exhibit 1, which is a copy of Exhibits A through K attached to the complaint for judicial review. Vega's counsel then offered and the court admitted Plaintiff's Group Exhibit 2 containing the minutes of the Board hearings from November 13, 2014, April 30, 2015, and May 7, 2015. Next, Vega's counsel offered Plaintiff's Group Exhibit 3 containing excerpts from a deposition of Saliga taken on July 24, 2013, noting that if opposing counsel wished to offer additional portions "it's certainly his free game." Transcript at 126. The Appellees' counsel noted that it was the first he'd seen of it "in this form in partial deposition, " and objected on that basis, and the court admitted the exhibit and noted that the Appellees would have the opportunity "to make any appropriate responses to it by way of other portions of the deposition." Id. at 127. Vega's counsel next offered Plaintiff's Group Exhibit 4, which included five exhibits received during Saliga's June 12, 2015 deposition, and the court admitted the exhibit. Vega's counsel then offered Plaintiff's Exhibit 5 containing excerpts of the Saliga deposition of June 12, 2015, before withdrawing it and instead offering the entire deposition as Plaintiff's Exhibit 6, which the court admitted. The court then asked Appellees' counsel "You don't have an objection to the whole dep being admitted, do you?" and counsel replied: "My objection is he's attempting to offer evidence that wasn't before the Board. I made that objection. I can keep making that objection if you want." Id. at 134-135. The court responded as follows:

And I think based upon -- what I'm going to basically do, I'll just let you folks know now. After I hear all the evidence, I will give you ten days after the hearing to submit your findings and conclusions. The Court will consider that. So we can end that, address every and any matter that you want to address.

Id. at 135. The court also admitted Plaintiff's Exhibit 7 containing a permit history, Plaintiff's Exhibit 9, which is the Appellees' Response to Vega's Request for Admission, and Plaintiff's Exhibit 10 containing the Appellees' Answer to Vega's Interrogatories.

         [¶10] After the court admitted Plaintiff's Exhibit 10, Vega rested and the court recessed for lunch. When the hearing reconvened, the Appellees' counsel began as follows:

Your Honor, we would like to make a quick motion for directed verdict. We think the plaintiff has the obligation to put the record of the Board of Works hearings from November 13, 2014; April 30th, 2015; May 7th, 2015, before the Court, and has failed to do so. Has only put piecemeal documents in front of the Court that were part of the Board's record. We also don't think the plaintiff has met his burden to show the Findings are arbitrary, capricious, et cetera.
There isn't any dispute that the -- at least there hasn't been any evidence so far that the building is occupied, the two units without proper fire separation, and that that's a dangerous condition. And there also isn't any record that the Board's decision not to allow [Vega's counsel] and Mr. Vega a ninth continuance after two years of litigation that that Finding also was arbitrary, capricious, et cetera.

Id. at 152-153. Vega's counsel responded by asserting that he presented an adequate record and that "the only inspection done by Mr. Saliga was in 2013" and "[t]here was supposed to be an inspection before there was a hearing on the merits." Id. at 154-155. The court then granted the ...

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