Pursuant to Ind.Appellate Rule 65(D), 

this Memorandum Decision shall not 

be regarded as precedent or cited 

before any court except for the purpose 

of establishing the defense of res 

judicata, collateral estoppel, or the law 

of the case.

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

PHILIP R. DAVIS JAMES P. FENTON

Fort Wayne, Indiana TIMOTHY A. MANGES

Eilbacher Fletcher, LLP

Fort Wayne, Indiana

IN THE

COURT OF APPEALS OF INDIANA

PHILIP R. DAVIS, )

)

Appellant, )

)

vs. ) No. 02A03-1209-PL-385

)

CITY OF FORT WAYNE, )

)

Appellee. )

APPEAL FROM THE ALLEN CIRCUIT COURT

The Honorable Thomas J. Felts, Judge

Cause No. 02C01-1206-PL-43

May 29, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
2

Case Summary

In this consolidated appeal, Philip Davis appeals the trial court’s dismissals of his 

complaints for judicial review. We affirm.

Issue

Davis raises one issue, which we restate as whether his complaints were timely 

filed. 

Facts

Davis owns property at 5105 Hoagland Avenue and 5405 South Harrison Street in 

Fort Wayne. On April 10, 2012, the City of Fort Wayne (“the City”) issued orders

requiring Davis to demolish the structures on the properties. A hearing on the demolition 

orders was conducted by a hearing officer on May 22, 2012. Davis attended the hearing, 

and the demolition orders were affirmed. The hearing officer issued written orders, 

which were notarized on May 29, 2012, and mailed to Davis. On June 4, 2012, Davis 

filed complaints for judicial review of the demolition orders. On June 20, 2012, the City 

filed motions to dismiss Davis’s complaints because they were untimely. On July 2, 

2012, Davis responded to the motions to dismiss. On July 5, 2012, after a hearing, the 

trial court granted the City’s motions to dismiss with prejudice. Davis now appeals.1

Analysis

Davis claims that the trial court improperly dismissed his complaints for judicial 

review because they were timely filed. “The standard of appellate review of rulings on 

 

1

 Davis filed separate notices of appeal and the cases were separately briefed under cause numbers 

02A03-1209-PL-385 and 02A03-1209-PL-387. On April 12, 2013, the cases were consolidated under 

cause number 02A03-1209-PL-385. 
3

motions to dismiss on jurisdictional grounds depends on whether the trial court resolved 

disputed facts, and if so, whether the trial court conducted an evidentiary hearing or ruled 

on a paper record.” Wayne Cnty. Prop. Tax Assessment Bd. of Appeals v. United 

Ancient Order of Druids-Grove No. 29, 847 N.E.2d 924, 926 (Ind. 2006). “We review de 

novo a ruling on a motion to dismiss for lack of jurisdiction if the facts are not disputed 

or, as here, the court rules on a paper record.” Id. Because the facts are undisputed and 

no evidentiary hearing was conducted, we review the dismissal de novo. 

Indiana Code Section 36-7-9-5(a)(6) permits an enforcement authority2to issue an 

order requiring the demolition of an unsafe building. Indiana Code Section 36-7-9-7 

requires that an evidentiary hearing be conducted by a hearing authority regarding certain 

orders, including demolition orders, issued by an enforcement authority. 

At the conclusion of any hearing at which a continuance is 

not granted, the hearing authority may make findings and take 

action to:

(1) affirm the order;

(2) rescind the order; or

(3) modify the order, but unless the person to whom 

the order was issued, or counsel for that person, is 

present at the hearing, the hearing authority may 

modify the order in only a manner that makes its terms 

less stringent.

 

2

 “‘Enforcement authority’ refers to the chief administrative officer of the department, except in a 

consolidated city. In a consolidated city, the division of development services is the enforcement 

authority, subject to IC 36-3-4-23.” Ind. Code § 36-7-9-2.
4

Ind. Code § 36-7-9-7(d) (emphasis added). Indiana Code Section 36-7-9-8 permits 

judicial review of an action taken under Indiana Code 36-7-9-7(d) and provides in part:

(b) A person requesting judicial review under this section 

must file a verified complaint including the findings of fact 

and the action taken by the hearing authority. The complaint 

must be filed within ten (10) days after the date when the 

action was taken.

(Emphasis added.) 

The parties do not dispute that the hearing authority affirmed the demolition orders 

at the conclusion of the May 22, 2012 hearing. Thus, according to the City, the action 

was taken on May 22, 2012, for purposes of the ten-day limit to file a complaint for 

judicial review. The City contends that Davis’s June 4, 2012 complaints were untimely. 

Davis responds by arguing that the ten-day limit did not begin until the hearing officer

signed the written orders on May 29, 2012 and, therefore, his June 4, 2012, complaints 

were timely. 

Davis argues that, without a written order, he could not prepare a verified 

complaint as required by Indiana Code Section 36-7-9-8(b). Davis suggests that, in the 

absence of a written order, he would have to record the hearing himself or take laborious 

notes while testifying to comply with the verification requirement. This overstates the 

verification requirement. Under Indiana Trial Rule 11, the signer who verifies a pleading 

must have personal knowledge thereof or reasonable cause to believe the existence of the 

facts or matters stated or alleged therein. See Giles v. Cnty. Dep’t of Pub. Welfare of 

Marion Cnty., 579 N.E.2d 653, 655 (Ind. Ct. App. 1991), trans. denied. Thus, as long as 

Davis had personal knowledge of the facts asserted in the complaints or reasonable cause 
5

to believe the matters asserted in the complaints, the verification requirement would have 

been satisfied.3 We are not persuaded that a written order must be issued to satisfy the 

verification requirement of Indiana Code Section 36-7-9-8(b).

Davis also argues that requiring a written order allows the hearing officer to 

confirm the accuracy of the directive and to correct any confusion created by the verbal 

order. Although that may be the case, it does not mean that a written order is legally 

required or that the signing of a written order starts the clock for purposes of the ten-day 

limit for seeking judicial review. We turn to the statutory framework for the resolution of 

those issues. 

Davis contends that a written order is statutorily required because Indiana Code 

Section 36-7-9-7(i), provides, “[t]he record of the findings made and action taken by the 

hearing authority at the hearing shall be available to the public upon request.” We also 

are not persuaded by this argument because that subsection goes on to state, “[h]owever, 

neither the enforcement authority nor the hearing authority is required to give any person 

notice of the findings and action.” I.C. § 36-7-9-7(i). 

In Starzenski v. City of Elkhart, 659 N.E.2d 1132 (Ind. Ct. App. 1996), trans. 

denied, cert. denied, we addressed a similar argument. In that case, Sophie, Kazmer, and 

Gennie Starzenski owned property in Elkhart. Sophie received notice of an October 29, 

1992 hearing on an enforcement authority order requiring the removal of trash from the 

premises. Starzenski, 659 N.E.2d at 1135. Sophie appeared at the hearing, offered 

 

3

 Although Davis’s complaints include almost verbatim recitations of the written orders, there is no 

indication that such was required to satisfy the verification requirement. 
6

evidence, cross-examined witnesses, and presented argument. Id. The hearing authority 

affirmed the order and notified Sophie of her right to appeal the decision within ten days. 

Id. at 1136. Sophie did not appeal or clean the premises and, when workers began 

cleaning the premises on February 8, 1993, Sophie sought and received a temporary 

restraining order. Id. When Sophie’s request for a preliminary injunction failed, she 

appealed arguing that the ten-day limit did not apply because she was never served with 

written notice of the hearing authority’s action. Id. at 1136-37. 

After analyzing Indiana Code Section 36-7-9-7(i), we concluded:

Indiana Code 36-7-9 does not require the hearing authority to 

serve written notice of its decision on the parties. The 

Hearing Authority informed Sophie of his findings and action 

at the conclusion of the hearing, and specifically informed her 

of the 10-day appeal procedure. This satisfies the statutory 

requirements, and triggered the 10-day appeal period.

Id. at 1137.4 

Relying on Indiana Code Section 36-7-9-7(d), we further concluded that the 

hearing authority took action at the conclusion of the October 29, 1992 hearing when it 

affirmed the enforcement authority’s order and the Starzenskis failed to appeal from that 

action within the requisite time period, waiving their challenge to the hearing authority’s 

decision and the enforcement authority’s order. Id. 

Davis attempts to distinguish Starzenski by arguing that, unlike the Starzenskis, 

who did not receive any written order and never filed an appeal of the hearing authority’s 

decision, “the delay in the availability of the record reasonably delayed his ability to file 

 

4

 Davis makes no argument regarding whether he was informed of the 10-day limit at the hearing, and 

were not provided with a transcript of the hearing.
7

an appeal.” Appellant’s Br. p. 8. We disagree. Absent statutory authority, we do not 

believe that the hearing officer’s issuance of written orders extended or altered the time 

limit for seeking judicial review of those decisions. Following the reasoning in 

Starzenski, the hearing officer took action when it affirmed the demolition orders at the 

May 22, 2012 hearing, not when it signed the written orders on May 29, 2012. Thus, 

Davis was required to file complaints for judicial review no later than June 1, 2012, and 

his June 4, 2012 complaints were untimely.5 

Conclusion

Because the hearing officer affirmed the demolition orders at the conclusion of the 

May 22, 2012 hearing, Davis’s June 4, 2012 complaints were untimely. The trial court 

properly dismissed the complaints. We affirm.

Affirmed.

NAJAM, J., and BAILEY, J., concur.

 

5

 Davis also argues that due process requires a reasonable amount of time to prepare the complaint. This

argument, however, is not supported with citation to authority and is waived. See Romine v. Gagle, 782 

N.E.2d 369, 386 (Ind. Ct. App. 2003) (“A party generally waives any issue for which it fails to develop a 

cogent argument or support with adequate citation to authority and portions of the record.”), trans. denied; 

Ind. Appellate Rule 46(A)(8)(a) (requiring each contention to be supported by citations to authorities, 

statutes, and the Appendix relied on).