Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 1 of 19

ATTORNEYS FOR APPELLANT

Craig E. Beougher

Eric C. Welch

Welch & Company, LLC

Muncie, Indiana

ATTORNEY FOR APPELLEE

Deborah L. Law

Office of Corporation Counsel

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Indy Diamond, LLC,

Appellant-Defendant,

v.

The City of Indianapolis,

Appellee-Plaintiff

August 15, 2019

Court of Appeals Case No.

18A-OV-2552

Appeal from the Marion Superior 

Court

The Honorable Carol J. Orbison, 

Senior Judge

Trial Court Cause No.

49D04-1311-OV-42176

Crone, Judge.
Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 2 of 19

Case Summary

[1] Indy Diamond, LLC (“Indy Diamond”),

1

is the owner of a large parcel of 

property located in Marion County (“the Real Estate”). The Real Estate

consists of a severely dilapidated former apartment complex that is currently 

vacant aside from criminals and squatters who frequent the property. After 

years of fighting with the City of Indianapolis (“the City”) over numerous 

municipal code violations, the parties entered into an agreed judgment that was 

adopted by the trial court, whereby Indy Diamond agreed to secure and 

maintain the Real Estate. Indy Diamond failed to do so, and the City filed a 

contempt petition. The trial court subsequently found Indy Diamond in 

contempt and, as a sanction, ordered Indy Diamond to demolish the buildings 

located on the Real Estate. 

[2] On appeal, Indy Diamond contends that the trial court abused its discretion in 

ordering demolition as a contempt sanction. Indy Diamond further asserts that 

it has been denied due process and that the trial judge was personally biased 

against it. Finding neither an abuse of discretion nor a due process violation, 

and concluding that there is no evidence of personal bias, we affirm.

Facts and Procedural History

[3] The convoluted history of this case began in November 2013, when the City 

filed a complaint for injunction, fines, and damages against Indy Diamond 

 

1 The record indicates that Indy Diamond is a foreign limited liability company based in England.
Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 3 of 19

alleging that Indy Diamond was maintaining a public nuisance in violation of 

Indiana statutory law and municipal codes. Specifically, the City alleged that 

Indy Diamond was neglecting the Real Estate, commonly known as Oaktree 

Apartments, and that the Real Estate’s deteriorated condition “unreasonably 

harms the City and citizens it serves and represents by contributing to the urban 

blight, depressing property values, discouraging development, imperiling the 

public, and consuming substantial public resources.” Appellee’s App. Vol. 2 at 

2.2 The City alleged that from July 26, 2012, to August 27, 2013, there had 

been at least 372 police runs to the Real Estate and 125 police reports for 

criminal activity including crimes of rape, arson, domestic battery, public

intoxication, child abduction, child abuse, burglary, armed robbery, aggravated 

assault, vandalism, intimidation, and trespassing. The City further alleged that, 

during the same time period, there had been fifty Department of Code 

Enforcement and Marion County Public Health Department cases opened 

against Indy Diamond and at least 146 inspections conducted of and relating to 

the poor condition of the Real Estate.

[4] In January 2014, the Health and Hospital Corporation of Marion County filed 

a complaint for injunction and fine against Indy Diamond. Following a 

hearing, Indy Diamond was ordered to vacate and board all occupied 

apartment units located on the Real Estate. Consequently, in February 2014, 

the City filed a request for preliminary injunction to prohibit Indy Diamond 

 

2 The Real Estate, located on Pinehurst Drive in Indianapolis, consists of approximately nineteen acres of 

land with at least twenty-six buildings situated thereon.
Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 4 of 19

from using the Real Estate for rental purposes and to require Indy Diamond to 

keep the property fully secured. Thereafter, following a hearing, the trial court 

granted the City’s request, entered a permanent injunction, and, in the City’s 

words, the Real Estate was essentially “condemned.” Appellee’s Br. at 11.3

[5] After the condition of the Real Estate deteriorated further, in August 2015, the 

City filed an “Emergency Motion for Order Compelling Maintenance of the 

Property.” Appellee’s App. Vol. 2 at 25. The City’s motion alleged that 

although Indy Diamond had removed all residents from the Real Estate, it had 

since failed to maintain the Real Estate in accordance with the municipal code. 

The allegations of code violations included: (1) the grass and weeds exceeded 

twelve inches in height; (2) doors and windows on the buildings were not 

equipped with proper hardware for locking to prevent unauthorized entry; (3) 

there were several broken windows; and (4) junk, trash, and debris littered the 

Real Estate. The City also alleged that local police and fire officials had been 

forced to respond to and address significant public safety concerns at the Real 

Estate, including two fires on the property and numerous squatters living inside 

unsafe structures. The City’s motion included photographs of the poor 

conditions of the Real Estate as well as emails from the City to Indy Diamond 

urging its attention to these matters. Following a hearing, the trial court 

entered an order compelling Indy Diamond to secure the Real Estate in 

 

3 The trial court found that at least two of the buildings on the property were wholly unfit for habitation due 

to extensive fire damage. Other buildings had broken windows, mold, and no water service. As of February 

2014, only one unit out of 348 was occupied.
Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 5 of 19

accordance with municipal code boarding standards, maintain the Real Estate 

in a safe and sanitary condition, and to remove any and all unauthorized 

persons found on the Real Estate. The court set the matter for a September 

2015 compliance hearing.

[6] A September compliance hearing was held, after which the trial court found 

that the evidence presented established that Indy Diamond had failed, without 

good cause, to comply with the court’s previous order. Accordingly, the trial 

court assessed a $15,000 fine against Indy Diamond, and again ordered Indy 

Diamond to comply with the previous order to secure and maintain the Real 

Estate. The matter was set for another compliance hearing on October 7, 2015. 

Both parties appeared by counsel at that hearing and stipulated that the Real 

Estate was not in compliance with the court’s order. The court gave Indy 

Diamond two additional weeks to bring the property into compliance. At the 

next compliance hearing, the trial court found that the evidence presented 

established that Indy Diamond had again failed, without good cause, to comply 

with the court’s order. The trial court assessed a $30,000 fine against Indy 

Diamond and ordered Indy Diamond to comply with the previous orders to 

secure and maintain the Real Estate. The matter was set for a December 2015 

compliance hearing, which was subsequently vacated by the parties for 

unknown reasons.

[7] On July 15, 2016, the City filed a motion for pretrial conference on its original 

complaint. The City alleged that in both February 2016 and June 2016, it had 

tried to contact counsel for Indy Diamond but had received no response. The 
Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 6 of 19

trial court set the matter for pretrial conference in August 2016, but the parties 

subsequently agreed to a continuance. In the interim, Indy Diamond agreed to 

secure all units by August 29, 2016, to establish a mowing schedule, and to 

mow the property before the conference. Another joint motion to continue was 

filed in September 2016, and the pretrial conference was reset to December 

2016, with a trial date set for January 18, 2017.

[8] Rather than proceed to trial, the parties filed an agreed judgment and order 

(“Agreed Judgment Order”) with the trial court on December 21, 2016. 

Pursuant to the Agreed Judgment Order, Indy Diamond admitted to all alleged 

statutory and municipal code violations, agreed to pay a $10,000 fine and court 

costs, and agreed to comply with all prior orders of the court to secure and 

maintain the Real Estate. However, the condition of the Real Estate continued 

to deteriorate throughout 2017. Accordingly, on January 23, 2018, the City 

filed a verified petition for contempt alleging that Indy Diamond violated the 

Agreed Judgment Order. Specifically, the City alleged that Indy Diamond had 

failed to secure and board the buildings on the Real Estate, remove trash and 

debris, and maintain the Real Estate in a safe and sanitary condition, as 

required by the Agreed Judgment Order. The City further alleged that Indy 

Diamond had unpaid fines and court costs totaling $10,133. The petition for 

contempt also alleged that the City, through its Department of Business and 

Neighborhood Services, had repeatedly inspected the property and issued 

numerous board orders, but had been forced to spend taxpayer funds to 
Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 7 of 19

continually board and reboard the structures on the Real Estate due to Indy 

Diamond’s failures.

[9] The trial court held a hearing on the City’s contempt petition on February 26, 

2018. During the hearing, the City presented seventy-eight photographs 

depicting the condition of the Real Estate. At the conclusion of the hearing, 

counsel for the City made an oral request for the court to issue a demolition 

order for the buildings on the Real Estate. Thereafter, on March 2, 2018, the 

trial court entered its order concluding that based on the evidence presented at

the hearing, the City met its burden to show that Indy Diamond was in 

violation of the Agreed Judgment Order. Accordingly, the trial court entered 

an order for Indy Diamond to demolish all structures on the Real Estate within 

sixty days.4 The trial court further ordered that Indy Diamond thereafter 

maintain the vacant Real Estate in accordance with the municipal code, so long 

as Indy Diamond retains an ownership interest in the Real Estate.

[10] Indy Diamond filed a motion to correct error on March 30, 2018, arguing that 

the City’s written contempt petition did not request an order of demolition, and

therefore the court’s order violated Indy Diamond’s due process rights. Indy 

Diamond further argued that the civil contempt remedy of demolition was 

improperly punitive rather than coercive or remedial in nature. Accordingly, 

Indy Diamond requested that the court’s demolition order be vacated.

 

4 The trial court made clear on the record, and in its order, that it would grant a reasonable extension if Indy 

Diamond needed more time to accomplish the demolition process.
Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 8 of 19

[11] On April 10, 2018, the trial court granted Indy Diamond’s motion to correct 

error and vacated the demolition order. The City subsequently filed an 

emergency request for a hearing for clarification of the court’s order. The 

matter was set for a hearing on April 25, 2018. During the hearing, the trial 

court acknowledged the due process concerns with its original demolition order 

and clarified that it intended to modify the order to give Indy Diamond an 

additional opportunity to be heard on the issue and the chance to purge itself of 

the sanction. At the conclusion of the hearing, the trial court issued an order 

from the bench reinstating the demolition order but holding it in abeyance until 

June 25, 2018, sixty days from the court’s ruling. The trial court’s subsequently 

issued written order provided in relevant part as follows:

IT IS FURTHER ORDERED that Defendants shall be entitled 

to relief from the Order to Demolish issued March 1, 2018

provided either of the following [has] occurred:

1) There has been substantial progress made toward the sale of 

the property commonly known as 9012 Pinehurst Drive North, 

Indianapolis IN. Substantial progress shall mean a fully-executed 

final purchase agreement along with an established timeframe for 

the closing of the sale of the property; or

2) The Defendants present evidence they are in compliance with 

the Agreed Judgment Order dated December 21, 2016.

Appellant’s App. Vol. 2 at 59. 

[12] The parties appeared for a compliance hearing on June 25, 2018. The City 

presented evidence that the condition of the Real Estate had further deteriorated 
Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 9 of 19

since the prior hearing and was still not in compliance with the Agreed 

Judgment Order. Although Indy Diamond presented evidence of a prospective 

buyer and a signed purchase agreement for the Real Estate, the agreement 

included conditions and contingencies on the sale by the prospective buyer, 

including that Indy Diamond had to get the demolition order “officially 

removed” by the end of the inspection period or the buyer refused to proceed. 

Id. at 71. Based upon the evidence presented, on July 13, 2018, the trial court 

issued an order lifting the stay on the demolition order. The court ordered that 

Indy Diamond “shall, by August 30, 2018, either close on the sale of the 

property OR raze the structures at the Real Estate[,]” and “bear all expenses 

associated with the permitting and demolition process.” Id. at 72-73. Indy 

Diamond filed a second motion to correct error, which was denied by the trial 

court. This appeal ensued.

Discussion and Decision

[13] On appeal, Indy Diamond does not challenge the trial court’s original 

determination that it was in contempt of the Agreed Judgment Order. Instead, 

Indy Diamond argues that the trial court abused its discretion in denying its 

second motion to correct error because, according to Indy Diamond, the trial 

court’s demolition order is an impermissible sanction for civil contempt. Indy 

Diamond additionally argues that it has been denied due process and that the 

trial judge was personally biased against it. We disagree on all counts.

[14] Trial courts have broad discretion to determine whether they will grant or deny 

a motion to correct error. Luxury Townhomes, LLC v. McKinley Props., Inc., 992 
Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 10 of 19

N.E.2d 810, 815 (Ind. Ct. App. 2013), trans. denied. An abuse of that discretion 

occurs if the trial court’s decision is against the logic and effect of the facts and 

circumstances before the court, or the reasonable inferences therefrom. Sanders 

v. Sanders, 105 N.E.3d 1102, 1106 (Ind. Ct. App. 2018). The trial court’s 

decision comes to this Court cloaked in a presumption of correctness, and the 

appellant has the burden of proving that the trial court abused its discretion. 

Jones v. Jones, 866 N.E.2d 812, 814 (Ind. Ct. App. 2007). We will neither 

reweigh the evidence nor judge the credibility of witnesses. Id.

Section 1 – The trial court did not abuse its discretion in 

ordering demolition as a contempt sanction for Indy 

Diamond’s violation of the Agreed Judgment Order.

[15] As with a motion to correct error, we review the trial court’s ruling on a 

contempt petition for an abuse of discretion. Mitchell v. Mitchell, 871 N.E.2d 

390, 394 (Ind. Ct. App. 2007). Accordingly, we will affirm unless, after 

reviewing the record, we conclude that the trial court’s decision is against the 

logic and circumstances before it, and we have a firm and definite belief that a 

mistake has been made by the trial court. Id. “Contempt of court involves 

disobedience of a court which undermines the court’s authority, justice, and 

dignity.” S.W. ex rel. Wesolowski v. Kurtic, 950 N.E.2d 19, 21-22 (Ind. Ct. App. 

2011) (citation omitted). Contempt falls into two categories—direct and 

indirect. Id. Whereas direct contempt involves actions occurring near the court 

and of which the court has personal knowledge, indirect contempt involves 

actions outside the court’s presence and personal knowledge. Id. A person who 
Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 11 of 19

willfully disobeys a lawfully issued court order is guilty of indirect contempt. 

Ind. Code § 34-47-3-1. 

[16] A party who has been injured or damaged by the failure of another person to 

conform to a court order may seek a finding of contempt. Kurtic, 950 N.E.2d at

22. Once a party is found in contempt, the trial court has the inherent authority 

to fashion an appropriate contempt sanction that is “coercive and remedial in 

nature.” Meyer v. Wolvos, 707 N.E.2d 1029, 1031 (Ind. Ct. App. 1999), trans. 

denied. In other words, when a court exercises its civil contempt power—as 

opposed to its criminal contempt power—the power is not to be used in a 

primarily punitive fashion, but instead to “coerce action for the benefit of the 

aggrieved party.” In re Paternity of M.P.M.W., 908 N.E.2d 1205, 1209 (Ind. Ct. 

App. 2009).

[17] Indy Diamond asserts that demolition is an inappropriate civil contempt 

sanction because it is aimed solely at punishing Indy Diamond. We disagree 

and conclude instead that the trial court’s demolition order is primarily 

remedial and coercive in nature rather than punitive. See Moore v. Ferguson, 680 

N.E.2d 862, 866 (Ind. Ct. App. 1997) (recognizing that a civil contempt

sanction may still be upheld even if it has “incidental punitive aspects”), trans. 

denied. Based upon our thorough review of the record, there is no question that 

the trial court’s demolition order, as modified by the trial court’s June 12, 2018 

order on the City’s motion to clarify, is primarily designed to provide a remedy

for Indy Diamond’s repeated failures to comply with the Agreed Judgment 

Order to secure and maintain the Real Estate. This sanction is both remedial
Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 12 of 19

and coercive because it was imposed to terminate Indy Diamond’s continuing 

contempt of court and to coerce Indy Diamond to perform acts within its 

immediate power to perform, namely to either bring the Real Estate into 

compliance with the Agreed Judgment Order or make substantial progress 

toward the sale of the Real Estate. See K.L.N. v. State, 881 N.E.2d 39, 42 (Ind. 

Ct. App. 2008) (observing that unlike punitive sanctions that punish a person’s 

failure to perform a past act, remedial sanctions coerce performance of an act 

that is within the person’s immediate power to perform) (citation omitted). 

Contrary to Indy Diamond’s assertions, the trial court’s modified demolition 

order constituted a primarily remedial and coercive sanction, and therefore it 

was not an inappropriate sanction for civil contempt.

5

[18] Where, as here, a court exercises its inherent civil contempt power and fashions 

a coercive contempt sanction, we have typically required that there be an 

opportunity for the contemnor to purge himself or herself of contempt. Moore, 

680 N.E.2d at 865-66; see Ind. Code § 34-47-3-5 (providing that the “court shall, 

on proper showing ... give the defendant a reasonable and just opportunity to 

be purged of the contempt.”). For example, where the trial court imposes a 

sanction of incarceration, the incarceration order may be “conditioned on the 

payment of money or the accomplishment of a single task.” M.P.M.W., 908 

 

5 Because we find that the demolition order was within the trial court’s inherent contempt powers, we need 

not address Indy Diamond’s assertion that the trial court was without statutory authority to order demolition 

as part of an ordinance enforcement action absent a specific motion by the City and a hearing. See Ind. Code 

§ 36-1-6-4 (listing eleven actions a trial court may take, including ordering a structure demolished, as part of 

an ordinance enforcement action). We similarly decline to address Indy Diamond’s inapposite assertion that 

the equitable doctrine of unclean hands should apply in this case. 
Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 13 of 19

N.E.2d at 1210. In this sense, it can be said that, because of the purge 

condition, the contemnor always carries the “keys to the jail” in his or her

pocket. Duemling v. Fort Wayne Cmty. Concerts, Inc., 243 Ind. 521, 526, 188 

N.E.2d 274, 277 (1963).6

[19] As noted above, the trial court’s modified demolition order gave Indy Diamond

two different avenues to purge itself of contempt: (1) comply with the Agreed 

Judgment Order; or (2) prove to the court that there had been substantial 

progress made toward the sale of the Real Estate. Indy Diamond presented no

evidence that it had, in fact, complied with the Agreed Judgment Order. Indy 

Diamond contends, however, that it did provide “clear evidence” to the trial 

court that substantial progress had been made toward the sale of the Real 

Estate. Appellant’s Br. at 18. However, the trial court was not so convinced. 

Indeed, based upon the testimony and the evidence, the trial court determined 

that Indy Diamond had not proven that it had made substantial progress 

toward the sale of the Real Estate. Specifically, the purchase agreement 

submitted to the trial court indicated that the prospective buyer had imposed

conditions and contingencies on any sale, including a requirement that the 

demolition order be lifted prior to the end of the inspection period. During 

 

6 Our supreme court has observed that the “purge” portion of the contempt statute has typically applied only 

to cases where the trial court has ordered jail time to coerce action by the contemnor. Reynolds v. Reynolds, 64 

N.E.3d 829, 835 (Ind. 2016). “This is likely because jail time is generally punitive in nature and civil 

contempt orders avoid punishing the contemnor by allowing the party to be purged of contempt.” Id. 

However, the Reynolds court specifically noted, “This is not to say that the purge portion of the statute could 

never apply in the absence of jail time.” Id. at n.5. While no jail time was ordered here, to the extent the 

demolition order can be perceived as incidentally punitive in nature, the trial court properly allowed Indy 

Diamond the opportunity to purge itself of contempt.
Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 14 of 19

cross-examination of one of Indy Diamond’s witnesses, the City further 

questioned the feasibility of this alleged buyer actually following through with a

sale, indicating to the trial court that “we’ve heard this song and dance before,”

referring to Indy Diamond’s long history of claiming to “almost” have the 

property sold. Tr. Vol. 2. at 104, 110. The determination that substantial 

progress had not been made toward the actual sale of the Real Estate was the 

trial court’s prerogative, and we will not reweigh the evidence or reassess

credibility on appeal. The trial court did not abuse its discretion in determining 

that Indy Diamond failed to purge itself of contempt.

Section 2 – Indy Diamond has not been denied due process.

[20] Indy Diamond maintains that it has been denied due process in this matter. As 

a general matter, alleged contemnors are guaranteed certain due process and

procedural rights. Reynolds v. Reynolds, 64 N.E.3d 829, 833 (Ind. 2016). The 

contempt sanction that is the subject of this appeal was based upon an 

allegation of indirect contempt because the contemptuous actions at issue took 

place away from the courtroom and outside the personal knowledge of the trial 

court. An indirect contempt requires an array of due process protections, 

including notice and the opportunity to be heard. In re Nasser, 644 N.E.2d 93, 

95 (Ind. 1994); see Ind. Code § 34-47-3-5 (specifying the notice requirements of a 

rule to show cause).

[21] Indy Diamond argues that because the City never filed a “Motion to Demolish”

or specifically requested a demolition order as part of its contempt petition, 

Indy Diamond was somehow not on notice that a demolition sanction was 
Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 15 of 19

possible and thus it has been denied an opportunity to be heard in a meaningful 

manner on the issue.

7 We find Indy Diamond’s argument disingenuous.

[22] Indeed, Indy Diamond made this same due process argument to the trial court

during the April 2018 hearing on the City’s motion for clarification. The trial 

court acknowledged the due process concerns with its original demolition order

and stated on the record that it recognized the need to attach purge conditions 

to its contempt sanction and to allow Indy Diamond an additional opportunity 

to be heard on the demolition issue. Counsel for Indy Diamond made the 

following recommendation to the trial court:

My recommendation to the Court would be ... reset this for sixty 

days. Our client [is] on notice that the City is requesting demolition. 

My client then will have sixty days to present to the Court, uh, 

documentation; either a signed purchase agreement, proof of 

funding, everything else we need to show the Court that our 

clients our serious about moving this forward.... I think that will

resolve all issues. So, my client then has fair notice that demolition is 

on the table.... So, sixty to – set it out sixty days. We’ll have time 

 

7

In a somewhat related argument, Indy Diamond also asserts that the demolition order violates Indiana 

Trial Rule 15(B) because the issue of demolition was neither raised in the pleadings nor tried by express or 

implied consent of the parties. See Ind. Trial Rule 15(B) (providing that “[w]hen issues not raised by the 

pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they 

had been raised in the pleadings” and that an “amendment of the pleadings may be necessary to cause them 

to conform to the evidence.”) As we will explain more fully, demolition was not a new “issue” that needed to

be tried by express or implied consent or to which an amendment to the City’s original petition to conform 

the evidence would have been necessary. Rather, the demolition order is a civil contempt remedy fashioned

by the trial court within its inherent discretion in contempt matters. Moreover, Indy Diamond has never

objected to the City’s oral request for demolition on grounds that the request violated Indiana Trial Rule 

15(B). Thus, Indy Diamond has waived this argument on appeal. See Van Winkle v. Nash, 761 N.E.2d 856, 

859 (Ind. Ct. App. 2002) (failure to raise an issue before the trial court results in waiver of that issue on 

appeal).
Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 16 of 19

we can impress upon our client, guys, it looks like this building is 

coming down unless, one, we convince the Court that it 

shouldn’t, or two, we’ve got valid proof showing the Court that

we’ve got real dollars coming into the community. That would 

be my recommendation.

Tr. Vol. 2 at 63 (emphases added). The trial court did precisely what Indy 

Diamond’s counsel requested: it entered an order holding the original 

demolition order in abeyance8 and reset the matter for another evidentiary 

hearing. A subsequent hearing was held, during which Indy Diamond 

presented evidence and testimony specifically regarding the demolition issue.

Indy Diamond has been afforded more than an adequate opportunity to be 

heard. There has been no denial of due process.

Section 3 – There is no evidence that the trial judge was 

personally biased against Indy Diamond.

[23] Finally, we will briefly address Indy Diamond’s assertion that we should

reverse the trial court’s demolition order because the trial judge was personally 

biased against Indy Diamond. The law presumes that a trial judge is unbiased. 

Richardson v. Richardson, 34 N.E.3d 696, 703-04 (Ind. Ct. App. 2015). To 

overcome that presumption, the party asserting bias must establish that the trial 

judge has a personal prejudice for or against a party. Id. “Adverse rulings and 

findings by the trial judge do not constitute bias per se. Instead, prejudice must 

 

8 We note that Indy Diamond requested that the trial court set aside the original demolition order. The trial 

court declined to do so, and instead held the order in abeyance. This was eminently reasonable under the 

circumstances.
Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 17 of 19

be shown by the judge’s trial conduct; it cannot be inferred from his [or her] 

subjective views.” Id. (citations omitted). Said differently, a party “must show 

that the trial judge’s action and demeanor crossed the barrier of impartiality and 

prejudiced” that party’s case. Id. (citing Flowers v. State, 738 N.E.2d 1051, 1061 

(Ind. 2000)).

[24] Indy Diamond directs us to various statements and comments made by the trial 

judge on the record which it claims support a finding that the trial judge was 

personally biased against Indy Diamond. Among other things, Indy Diamond

accuses the trial judge of injecting her personal feelings about the Real Estate, in

commenting that she was “thoroughly disgusted” by the condition of the Real 

Estate, 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.” 

Appellant’s App. Vol. 3 at 49-50. Additionally, Indy Diamond complains that 

this particular trial judge had not been involved in the case from the beginning 

so that her comments illustrated a “clear personal bias” rather than views 

garnered based upon her involvement in the case itself. Appellant’s Br. at 27.

[25] After reviewing the record, we conclude that 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 
Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 18 of 19

Conduct,9to 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. 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.

[26] Pursuant to Indiana Appellate Rule 66(E), we have discretionary authority to 

assess damages, including appellate attorney’s fees, in the event an appeal is 

“permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, 

or purpose of delay.” Tipton v. Estate of Hofmann, 118 N.E.3d 771, 777 (Ind. Ct. 

App. 2019). 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. 

 

9

Indiana Judicial Conduct Canon 2 requires a judge to “perform the duties of judicial office impartially, 

competently, and diligently.” Judges must be “objective and open-minded.” Rule 2.2, cmt. 1. “A judge shall 

perform the duties of judicial office ... without bias or prejudice.” Rule 2.3(A). A judge shall disqualify 

himself or herself “in any proceeding in which the judge’s impartiality might reasonably be questioned,” 

including in circumstances when “the judge has a personal bias or prejudice concerning a party.” Rule 

2.11(A).
Court of Appeals of Indiana | Opinion 18A-OV-2552 | August 15, 2019 Page 19 of 19

[27] In sum, Indy Diamond has not met its burden to demonstrate that the trial 

court abused its discretion in denying its second motion to correct error. 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. We affirm the trial court’s demolition order in all 

respects.

[28] Affirmed.

Bradford, J., and Tavitas, J., concur.