MEMORANDUM DECISION

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.

ATTORNEY FOR APPELLANT

Craig Persinger

Marion, Indiana

ATTORNEY FOR APPELLEES

Megan B. Quirk

Muncie, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Rosina Keller,

Appellant-Plaintiff,

v.

Gretchen Cheesman, as 

Administrator of the City of 

Muncie Unsafe Building Hearing 

Authority, and the City of 

Muncie,

Appellees-Defendants.

November 23, 2016

Court of Appeals Case No.

18A02-1601-MI-188

Appeal from the Delaware Circuit 

Court.

The Honorable Marianne L. 

Vorhees, Judge.

Cause No. 18C01-1503-MI-11

Friedlander, Senior Judge

[1] Rosina Keller appeals the trial court’s grant of summary judgment in favor of 

Gretchen Cheesman, in her capacity as Administrator of the City of Muncie’s

Unsafe Building Hearing Authority, and the City of Muncie. We affirm.

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[2] James Conaster owned property in Muncie, Indiana, that contained a house 

and an outbuilding. Rodney Conaster (relationship to James Conaster 

unknown) complained to the Delaware County Health Department about the 

conditions of those structures. Appellant’s App. p. 33. On August 25, 2014, an 

inspector for the Department visited the property.

[3] On August 26, 2014, the Department issued an order deeming the house to be 

“unfit for human habitation” due to disrepair and unspecified unsanitary 

conditions. Id. at 34. Conaster was ordered to fix the problems or vacate the 

buildings within five days. It appears from the record that Conaster was elderly 

and infirm, and he was removed from the property at some point during this 

period.

[4] Also on August 26, 2014, the Building Commissioner for the City of Muncie 

issued an initial demolition order for the house and outbuilding, deeming them 

to be dangerous structures. The order stated that the house’s roof was in 

disrepair and the ceiling was falling in. Furthermore, the house’s wiring was in 

disrepair.

[5] Meanwhile, Conaster was delinquent on property taxes. On October 15, 2014, 

Keller purchased the property at a tax sale. The Delaware County Auditor 

issued a Tax Sale Certificate to Keller. According to the Certificate, Keller 

would be “entitled to a deed for the tract of land so purchased as above 

described at the expiration of the redemption period (Thursday, October 15, 

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2015)” if the prior owner, Conaster, did not pay the back taxes during that 

period. Id. at 7.

[6] On October 30, 2014, the City of Muncie issued a formal demolition order to 

Conaster. In the order, the City directed Conaster to demolish the house and 

outbuilding within forty-five days. The City further informed Conaster that the 

Unsafe Building Hearing Authority (the Authority) would hold a hearing on the 

demolition order on December 11, 2014. The City sent a copy of the letter to 

Keller.

[7] The Authority held a hearing as scheduled on December 11, 2014. Conaster 

did not attend, but Keller attended and was recognized by the Authority as the 

“tax sale buyer” of the property. Id. at 45. Keller asserted that she wanted to 

rehabilitate the house but conceded she would not have the right to possess the 

property for thirteen months.

[8] After the hearing, the Authority issued a “Record of Hearing.” Id. In the 

Record, the Authority both “affirmed” and “continued” the October 30, 2014 

demolition order, granting Keller “additional time to comply with the order.” 

Id. The Record instructed Keller to submit to the Authority within sixty days a 

schedule to repair the house and proof that she could afford $25,000 worth of 

repairs on the house. The Authority also suggested that Keller take steps to 

gain an immediate right of access to the property to make repairs. The 

Authority scheduled a follow-up hearing for February 12, 2015.

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[9] At the February 12, 2015 hearing, Conaster did not attend, but Keller was 

present. She submitted a schedule to repair the property and a proposed 

budget, but she did not provide proof that she could afford to pay for $25,000 

worth of repairs. At the end of the hearing, the Authority issued another

“Record of Hearing” in which the Authority affirmed the demolition order and 

the proposed timetable for destruction of the house and outbuilding. Id. The 

Authority declined to give Keller any additional time. The Record further 

indicated she was told “she could appeal [the] order within 10 calendar days.” 

Id.

[10] On February 23, 2015, Keller filed a verified civil complaint against Gretchen 

Cheesman in her capacity as Administrator of the Authority, the City of 

Muncie, and James Conaster, asking the trial court to reverse the demolition 

order. Administrator Cheesman and the City of Muncie filed an answer 

generally denying Keller’s allegations.

[11] Next, Administrator Cheesman and the City of Muncie filed a Motion for 

Summary Judgment and Dismissal of Complaint. Keller did not file a response 

to Cheesman and the City’s motion or designate any evidence in opposition to 

the motion. The court held oral argument, at which all parties other than 

Conaster appeared. After the hearing, the court granted the motion and 

dismissed Keller’s complaint in its entirety.

[12] After the court granted the summary judgment motion, the City began to 

demolish the house and outbuilding using its own contractor. Keller filed a 

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motion to stay the demolition proceedings, and the court granted the motion. 

Next, Keller filed a motion to correct error, which the court denied. The City 

filed a motion to resume demolition, alleging that the property had been left in 

a dangerous state. The court granted the motion. This appeal followed.

[13] Keller claims the trial court should not have granted summary judgment to 

Cheesman and the City. The party appealing from a summary judgment 

decision has the burden of persuading this court that the grant or denial of 

summary judgment was erroneous. Doe v. Adams, 53 N.E.3d 483 (Ind. Ct. App. 

2016), trans. denied.

[14] We review summary judgment de novo, applying the same standard as the trial 

court. Hughley v. State, 15 N.E.3d 1000 (Ind. 2014). A party is entitled to 

summary judgment if the designated evidence shows that there is no genuine 

issue as to any material fact and the party is entitled to judgment as a matter of 

law. Ind. Trial Rule 56(C). The movant bears the initial burden of 

demonstrating the absence of any genuine issue of material fact. Hughley, 15 

N.E.3d 1000. If the movant successfully carries that burden, then the 

nonmovant must produce contrary evidence establishing an issue for the trier of 

fact. Id. We consider all evidence and inferences in the light most favorable to 

the nonmoving party. Smith v. Delta Tau Delta, 9 N.E.3d 154 (Ind. 2014).

[15] Cheesman and the City argued to the trial court and argue on appeal that Keller 

failed to timely seek judicial review of the Authority’s final condemnation 

decision. The trial court granted summary judgment to Cheesman and the City 

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on a different ground, specifically that Keller lacked standing to challenge the 

demolition order.

[16] We may affirm a grant of summary judgment on any theory supported by the 

evidence. Miller v. Danz, 36 N.E.3d 455 (Ind. 2015). Even if we assume for the 

purposes of this appeal that Keller has standing and timely filed her request for 

judicial review, there is another basis upon which to affirm the trial court’s 

judgment. Specifically, in their motion for summary judgment, Cheesman and 

the City argued that the February 12, 2015 order on demolition was appropriate 

because Keller “refused to comply with the requests of the Enforcement 

Authority in order for a possible rescission of the December 11, 2014 

Demolition Order.” Appellant’s App. p. 26.

[17] Keller neither filed a response to Cheesman and the City’s motion for summary 

judgment nor designated any evidence in opposition to summary judgment. As 

a result, although we are mindful of our obligation to view the facts in the light 

most favorable to the nonmovant, we have only Cheesman and the City’s 

evidence before us. That evidence demonstrates that during the December 11, 

2014 hearing, the City’s employees pointed out that the house was in extremely 

poor condition and expressed doubt that it could be repaired without expending 

large sums of money. For that reason, the Authority directed Keller to provide 

proof within sixty days that she could pay $25,000 to rehabilitate the house. 

Keller failed to provide such proof at the February 12, 2015 hearing.

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[18] Appellate courts are obligated to scrutinize the record to ensure that the party 

that loses on summary judgment is not improperly prevented from having its 

day in court. Siner v. Kindred Hosp. Ltd. Partnership, 51 N.E.3d 1184 (Ind. 2016). 

A movant bears “a heavy factual burden” to establish “the absence of any 

genuine issue of material fact on at least one claim.” Id. at 1187. Even so,

Keller failed to file a response to the summary judgment motion, and as a result 

Cheesman and the City demonstrated without contradiction that she failed to 

comply with conditions for further continuances of the demolition order. There 

was no genuine dispute of material fact, and the trial court did not err by 

granting summary judgment in favor of Cheesman and the City. See Brown v. 

Banta, 682 N.E.2d 582 (Ind. Ct. App. 1997) (affirming grant of summary 

judgment where nonmovant failed to timely respond, effectively resulting in the 

motion being unopposed), trans. denied.

[19] For the reasons stated above, we affirm the judgment of the trial court.

[20] Judgment affirmed.

Baker, J., and Najam, J., concur.

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