Court of Appeals of I ndiana | Opinion 18A

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A TTORNEY S FOR A PPELLANT Craig E. Beougher Eric C. Welch Welch & Company, LLC Muncie , Indiana A TTORNEY FOR A PPELLEE Deborah L. Law Office of Corporation Counsel Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIA NA
Indy Diamond, LLC , Appellant

- Def e ndant,

v. 

### The City of Indianapolis , Appellee

- Plaintiff August 15, 2019 Court of Appeals Case No. 18A

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- 2552 Appeal from the Marion Superior Court The Honorable Carol J. Orbison, Senior Judge Trial Court Cause No. 49D04

- 1311

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- 42176

Crone , Judge .Court of Appeals of I ndiana | Opinion 18A

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### Case Summary

[1] Indy Diamond, LLC (“Indy Diamond”) , 1 is the owner of a large parcel of property located in Marion County ( “ th e Rea l Estate ” ) . The Real Es tate consi sts of a severely d i lapi dated former apartment complex that is currently

vaca nt aside from cri m inals and squatters who frequent the property. After years of fighting with the City of Indianapolis ( “ the City ” ) ov er nu m ero us municipal code vio l ations , t he parties entered int o an a greed j udgment that was adopted by the trial court, whereby Indy Diamo nd agr eed to secure and

ma intain the Real Estate . I ndy Diamond failed to do so, and the Ci ty filed a contem pt petition . T h e tr ial court subsequently found Indy Diamond in contempt and , as a sanctio n, ordered Indy Diamond to demolish the buildings located on the Real Estate

.
[2] O n appeal , Indy Diamond contends that the trial court abused its discretion in ordering demolition a s a contempt sanction . Indy Diamond further asserts that it has been denied due process and that the trial judge was per sonally biase d against it . Finding ne ither an abuse of discretion nor a due process violatio n, and concluding tha t there is no evidence o f persona l bias, we af firm

. 

### Fac ts and Procedural Hi story
[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 T he record indicates that Indy D ia mond is a f orei gn l imited l iability c ompany based in England.Court of Appeals of I ndiana | Opinion 18A

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alleging that Indy Diamond was maintaining a publ i c nuisance in v iolation of India na statut ory law and muni cipal codes. Specifically, the City alleged that Indy Diamond was neglecti ng the R eal E state, commonly known as Oaktree Ap ar tments, and that the Rea l Estate’s deteriorated condition “unreasonably h a rms the City an d citize ns it ser ves and represents b y contributing to the urban blight, depressing property values, discouraging dev elopment, imperiling the public, and consuming substantial public resources .” Appellee’s App. Vol. 2 at 2. 2 The City alle g ed that from Ju ly 26, 20 12 , to Aug ust 27, 2013, there had been at least 372 police runs to the Real Estate and 125 police reports fo r criminal activity including crimes o f rape, arson, domestic battery, public intoxication, child abduction, child abuse, b u rglary, armed ro bbery, ag gravated assault, vandalism, intimidation, and trespassing. The City further alleged that , during the same time period, there had been fif t y Department of Code Enforcement and Marion County Public Health Department cases opened

a g ainst Indy Diamo nd and at least 14 6 inspections conduc ted of and relating to the poor condition of the Real Estate.

[4] In Janu ary 2014, the Health and Hospital Corporation of Marion County filed a complaint for injun ction and fine against Indy Diamond. Foll o wing a hearing, Indy Diamond w as ordere d to vacate and boar d 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 Dri ve in Indianapolis, consists of a pproximately nineteen acres of land with at least twenty

- six buildings situated thereon.Court of Appeals of I ndiana | Opinion 18A

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from using the Real Estate f o r rental purpose s and to requi re Indy D iamond to keep the p roperty fully secured. The reafter, following a hearing, the trial court granted the City’s request, entered a permanent injunction, and , in the City’s

wor ds, the Real Estate was essentially “cond e mned.” Appellee’ s Br. at 11. 3

[5] After the condition of the Re al Estate deteriorated further, in August 2015, the City filed an “Emerg ency Motion for Order Compelling Maintenance of the Property.” Appellee’s App. Vol. 2 at 25. The City’s motion alleged th a t although Indy Diamond had removed al l residen ts from the Real Est ate, it had since failed to maintain the Real Estate in accordanc e with the municipal code

. The allegations of code violations included: (1) the grass an d weeds exceeded twelve inches in h eight ; (2) doors and windows on th e buildings we re not eq uipped with proper h ardware for locking to prevent unauthorized entry; (3) there were several broken windows ; and (4) junk, trash, and debris litter ed the Real Estate. The City also alleged that lo c al police and fire officials had been forc ed to res pond to and address sig nificant public safety concerns at the Real Estate, includ ing two fires on the property and numerous squatters living inside unsafe structures. The Cit y’s motion included photograph s of the poor conditions of the Real Estat e as well as emails from the City to Indy Diamond urging its attention to these matters. F ollowing a hearing, the trial court entered an order compelling Indy Diamond to secure the Real Estate in

3 The trial court found th a t at least tw o of the buildings on the property were wholly unfit for habitation due to extensive fire damage. Other buildings had broken w indows, mold , and no water service. As of February 2014, only one unit out of 348 was o ccupied.Court of Appeals of I ndiana | Opinion 18A

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accordance with m u nicipal code boarding standards, m aintain th e Real Es tate in a safe and s anitary condition, and to remove any and all unauthorized
p ersons found on the Real Estate. The court set the matter for a September 2015 complia nce hearing.

[6] A September compliance h earing was held, after which the t rial court found th at the evidence pres ented established that Indy Diamond had failed , without
goo d cause , to comply with the court’s previous order. Accordingly, the trial court assessed a $15, 000 fine against Indy Diam o nd, and again ordered Indy Diamond to comply with the previous order to s ecure and maintain the Real Estate. The matter was set for a nother compliance hearing on October 7, 2015. Both parties appeared by counsel at that hearing and stip ulated that the R e al Estate was not in compliance with the court’ s order . T he court gave I ndy Diamond two additional weeks to bring the property into compliance. At the

ne xt compliance hearing, the trial court found that the evidence presented establ ished that Indy Diamo n d had again failed, without good c ause, to c omply wit h the court’s order. The trial court assessed a $30,000 fine against Indy Diam ond 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 hea ring, whic h was sub sequently vacated by the parties for unknown reasons.

[7] On July 15, 2016, the Cit y filed a motion for pre trial conference on its original complaint . The City alleged that in both Feb ruary 2016 and June 20 1 6, it had tried to contact counse l for Indy Diamond but had received no response. TheCourt of Appeals of I ndiana | Opinion 18A

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trial court set the matter for pretrial confe rence in August 2016, but the parties subsequently agreed to a continuance. In the interim, Indy Dia mond agreed to

secure a ll units by August 29, 2016 , to e stablish a mowing s chedule, 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 Ja n uary 18, 2017.

[8] Rather than procee d to trial , the par ties 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 mun i cipal code violations, agre ed to pay a $10, 000 fine and court costs, and agreed to c omply with all prior orders of the court to secu re and maintain the Real Estate . However, the condition of the Real Estate continued to deteriorate throughout 2017. Acco r dingly, on January 23, 2018, t he City filed a verifi ed petition for contempt allegin g 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, r emove trash and debris, and maint ain the Re al Estate in a safe and sanitary condition, as required by the Agreed Judgment Order . Th e City further alleged that Indy Diamond had unpaid fines and court costs totaling $10,133. The petition for

con tempt also alleged that the City, through it s Departm e nt of Bus iness and Neighborhood Services, had repeate dly inspected the property and issue d numerous board orders, but had been forced to spend taxpayer funds toCourt of Appeals of I ndiana | Opinion 18A

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continually board and reboard the structures on the Real Estate due to Indy Diamond’s fa ilures.

[9] T h e trial c ourt held a hearing on the City’s contempt p etition on February 26, 2018. Du ring the hearing, the City presented seventy

- eight photographs depicting the condition of the Real Estate. At the conclusi o n of the hearing, counsel for the Ci ty made a n oral req uest for the court to issue a demolition ord er for the buildings on the Real Estate . Thereafter, on March 2, 2018, the trial court entered its order concluding that b ased on the evidence presented at the hearing , the City met its burden to show t hat Indy Diamond was in violation of t he Agreed Judgment Order

. Accordingly, the tria l court entered an order for Indy Diamond to demolish all structures on the Real Estate within sixty days. 4 The trial cour t further ordered that Indy Diamond t hereafter maintain the vacant Real Estate in accordance with the muni cipal 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 th e City’s w ritten co ntempt pe tition did not r equest an order of demolition, and therefore the court’s order violated I ndy Diamond’s due process rights. Indy Diamond further argued that the civil contempt remedy of demolition was improperly p unitive rather than coercive or re medial in nature

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

.

4 The tri al court m ade c lear on the record, and in its order , that it would grant a reas onable extension if Indy Diamond needed m ore time to accomplish the dem olition proc ess.Court of Appeals of I ndiana | Opinion 18A

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[11] O n April 10, 2018, the trial court granted Indy Diamond’s motion to correct error and vacated the demolition order. T he C ity su bsequentl y filed an
emergenc y request for a hearing fo r clarification of the court’s or der. 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 o rder and clarif ied that it intended to modify the order to give I n dy Diamond an additional opportunity to be heard on the issue and the chance to purge itself of th e sanction. At the conclusion of the hearing , the trial court issued an order from the ben c h reinstating t he demolition order but holding it in abeyan ce until June 25, 2018 , si xty days from the court’s ruling

. T he trial co urt ’ s sub sequently issued written order provid ed in relevant part as follows:

IT IS FURTHER ORDERED that Defendants shall b e entitled to r elief from the Order to Demolish issued Marc h 1, 2018 provided e ither of the following [has] occurred: 1) There has b een substantial progress made toward the sale of the property commonly known as 9012 Pinehurst Drive North, Indianapolis IN

. Substantial pr ogress shall mean a fully

- executed final pur chase agr eement alon g with an established timeframe for the closing of th e sale of the property; or 2) The Defendants present evidence they are in compliance with the Agreed Judgment Order dated D ecember 21, 201 6.
Appellant’s App. Vol. 2 at 59.

[12] The parti es appear ed for a co mpliance hearing on June 25, 2018. The City presente d evidence that the condition of the Real Estate had further deterioratedCourt of Appeals of I ndiana | Opinion 18A

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since the prior hearing and was still not in comp l iance with the Agreed Judgment Ord er . Although Indy Diamon d present ed evidence of a pros pective buyer and a signed purchase agreeme nt for the Real Estate, the agreement included conditions and contingencies on the sale by the pros pective buyer , including that Indy Diamond had to get the demolition order “ officially removed ” b y the end of the inspection period or the buyer refused to p ro ceed

. Id . at 71. Based upon the evidence presented, on July 13, 2 018, the trial court issued an order lifting the stay o n the demolitio n 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

ass ociated with the permitting and demolition process.” Id

. at 72

- 73 . Indy Diamond filed a second motion to co rrect error, which was denied by the trial court. This appeal ensued.



### Discus sion and Decision

[13] On appeal, Indy Diamond does not ch allenge the trial court’s original determination that it was in co ntem p t of the Agreed Judgment Order

. Instead, Indy Diamond ar gues that the trial court abused its discretion in denying its second motio n to correct error because, according to Indy Diamond, the trial court’s demolition order i s an impermissible s anction fo r c ivil contempt

. Indy Diamond additionally argues that it ha s 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 th ey will grant or deny

a mo t ion to correct error. Luxur y Townhomes

, LLC v. McKinley Props., Inc. , 992Court of Appeals of I ndiana | Opinion 18A

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N.E.2d 810, 815 (Ind. Ct. App. 2013), trans. denied

. An a buse of that discretion occurs if the trial court ’ s decision is against the logic and effect of t he facts and circumstances before the court, or the re asonable in f erences therefrom. Sanders v. Sanders , 105 N.E.3d 1102, 1106 (Ind. Ct. App. 2018). T he trial court ’ s decision comes to this Court cloaked in a presumption of correctness, and the appellant has the burden of proving t hat the trial court abused its discret i on. Jones v. Jones , 866 N.E.2d 812, 814 (Ind. Ct. App. 2007)

. We will neither reweigh the ev idence nor judge the credibility of witnesses. Id

. 

### Section 1

– The trial court did not abuse its discretion in ordering dem o lition as a contempt sancti on for Indy Diamond’s v iolation of the Agreed Judgment Order . [15] As w ith a motion to correct error , we revie w the tr ial court’s ruling on a contempt petition for an abuse of discretion. Mitchell v. Mitchel l , 871 N.E.2d 390, 394 (In d

. Ct. App. 2007)

. A ccordingly , we will affirm unless, afte r reviewing the record , we conclu de that the trial court’s decision is ag ainst the logic a nd circumstances before it, and we have a firm and definite belief that a mistake has bee n made by the tri a l court. Id . “Contempt of court involves disobedience of a court which undermine s the court ’ s authority, justice, and dignity.” S.W

. ex rel. Wesolow

ski v. Kurtic , 950 N.E.2d 19, 21

- 22 (Ind. Ct. App. 2011) (citation omitted). Contempt fal ls into two categ o ries

— direct and indirect. Id

. Whereas direct contempt invo lves actions occurring near the co urt and of which the court has personal knowledge, indir ect contempt involves actions outside the court’s presence and personal knowledge. Id . A person whoCourt of Appeals of I ndiana | Opinion 18A

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willf u lly disobeys a lawfully issued court order is guilty of ind irect contempt

. Ind. Code § 34

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- 1.

[16] A party who has been injured or damaged by the fa ilure of another person to conform to a court order may seek a finding of contempt

. Kur tic , 950 N.E.2d a t 22 . O nce a party is found in contempt, the trial court h as the inherent authori ty
to fashion an appropr iate contempt sanction that is “ co ercive and rem edial in
nature

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

. In othe r 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
p rimarily punitive fashion, but instead to “coerce action for the benefit of the aggrieved party.” In re P ate rnity of M.P.M. W

. , 908 N.E.2d 1205, 1209 (Ind. Ct. App. 2009)

.
[17] I ndy Diamon d asserts that demolition i s an i nappropriate civil contempt sanction beca use it is ai med sol ely at punishing I ndy Diamond

. W e d isagre e and conclude inst ead t hat the trial court ’ s demolition order is primar ily remedial and coercive in nature rather than punitive

. See Moo re v. Ferguson , 680 N.E .2d 862, 866 (Ind. Ct. App. 1997) (recognizing that a civil contempt sanction may still be u pheld even if it ha s “incidental punitive aspec ts ” ), trans. denie d

. B ased upon our tho rough review of the record, t here is no question that the trial court ’ s demolition order , as modified by the tr ial court ’ s June 12, 2018 order on the City ’ s motion to clarify, i s primarily designed to provide a rem ed y for I ndy Diamon d ’ s repeated failure s to comply with the Agreed Judgment Order to secure and maintain the Real Estate

. This sanction i s both remedialCourt of Appeals of I ndiana | Opinion 18A

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

c ontempt o f court and to coerc e Indy Diamond to perform acts within its immediate po wer to perform , namely to either bring the Real Estate into compliance with the Agreed Judgment Order or make su bstantial progre ss toward the s a l e of the Real Estate

. See K.L. N. v. State, 881 N.E.2d 39, 42 (Ind. Ct. Ap p . 2008) (observing that unlike punitive sanctions that punish a person ’ s failure to perf

orm a past act, remedial sanctions coerce pe rforma nce o f an act tha t is within the person ’ s immediate power to perform ) (citation omitted)

. Con trary to Indy Diamond ’ s assertions , the trial court ’ s modified demolition order constituted a primarily remedial and co ercive sanction , and t herefo re i t

was not an inappropr iate s anction for civil contempt

. 5

[18] Whe re , as here, a court exercises its inh ere nt civil contempt power and fashions

a c oercive contempt sanction, we have typically required that there be an opportun ity for the contemnor to purge h im self or herself of contempt. Moore , 680 N.E.2d at 865

- 66 ; see Ind. Code § 34

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- 3

- 5 ( providing tha t the “ court shall, on proper sh o wing ... give the defendant a reasonable and just opportunity to be purged of the contempt. ” ). F or example, where the trial court imp oses a sanction of incarceration, the incarc eration 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 wi thin the trial court ’ s inherent contempt powers, we ne ed not a ddre ss Indy Diamond ’ s asse rti on that the trial court was without statutory au thority to order demo lition as part of an ordinanc e en force men t action absent a specific motion b y the City and a hea ring

. See Ind. Code § 36

- 1

- 6

- 4 ( lis ting e leven a ct ions a tria l co urt may take, including ordering a structure demolished, as part of an ordinance enforcement action)

. We similarly decline to address Indy Di amond ’ s inappo site assertion that the equitable doct rine of unclean h ands should apply in this case

.Court of Appeals of I ndiana | Opinion 18A

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N. E.2d at 1210. In this sense, it can be said that, because of the purge condition, the contemnor a lway s carries the “keys to the jail” in h is or her pocket. Duemling v. Fort Wayne C mty . Concert

s, In c
. , 243 Ind. 521, 526, 1 88 N.E.2d 274, 277 (1963). 6

[19] A s noted above, the trial court ’ s modified demolition order gave Indy Diam ond
two d ifferent a venues to p urge itself of con tempt : (1) comply with the Agreed Judgment Order ; or (2) prove to the court t hat there had been subst anti a l progress made tow ard the sale of the Real Estate

. Indy Diamond presented no

e vidence that it had , in fact, compl ied with the A gre ed Judgment Order

. Indy Diam ond contends , however, that it did provide “ clear eviden ce ” to the trial
court that substantia l progre ss had been made t oward the sale of the Real Estate

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

. I n de ed, based upon the testimony and the evide nce , the trial court determined that Indy Dia mond had not proven that it had m ad e subst antial progress toward the sale of the Real Estate . Specifically, the pur chase agreement submitted to the trial court indi cated that the pros pective buyer had imposed conditions and contingencies on a ny sale , including a requirement that the dem o lition order be lifted prior to the end of t he inspection per iod . During

6 O ur su prem e court has observ e d that the “purge” portion of the contempt statute has ty pically appli ed only to cases where the trial c ou rt has ord ered jail time to coerce actio n by the contemno r. Reynolds v. Reynolds , 64 N.E.3d 829, 83 5 (Ind. 2016). “ This is like ly b ecause jail time is generally punitive in nature and civil contempt orders avoid punishing t he contemnor by allowing the pa rt y to be pu rged of contempt. ” Id

. H owever, the Reynolds court specifically noted, “ This is not to say that the purge portion of the stat ute could never apply in the absence of j ail time. ” Id . at n. 5

. W hile no jail time was ordered h ere, to the ex tent th e demol ition order can be perceived as incidentally punitive in na ture , the trial court properly allowed Indy Diamond the opportu nity to purge i tself of contempt

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cross - examination of one of Indy Diamond ’ s witnesses, t he Cit y further questioned the feasibility of this alleged buyer actually following t hrough with a sale, indicat ing to the tr i a l court that “ we ’ ve heard this song and dance before , ” referring to I n dy Diamond ’ s long history of clai ming to “ almost ” hav e the
pro perty sold

. Tr. Vol. 2. at 104 , 110

. Th e determination that substantial
progre ss had not been made to ward the actual sal e of the Real Esta te was the trial court ’ s prerogative , and w e will not re weigh the ev idence o r reassess credibility on appeal. The t rial court did not ab use it s discretion in determining that Indy Diamond failed to purge itself of contempt

. 

### Sect ion 2

– In d

y 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 du e process an d procedural rights. Reynolds v. Reynolds , 64 N. E.3d 829, 8 33 (Ind. 2016)

. The contempt sanction tha t is the subject of this appeal was based upon a n allegation of indirect con tempt because the contemptuous actions at issue took place away from the courtroom and outside the personal knowledge of the t rial
court

. An indirect c ontempt requires an array of due process protections, including notice and t he opportunity to be heard. I n re Nasser , 644 N.E.2d 93, 95 (Ind. 1994) ; see Ind. Code § 34

- 47

- 3

- 5 ( specify ing the notice re qu irements of a rule to show cau se ).

[21] Ind y Diamond argues that becaus e the C i t y n e v e r f i l e d a “ M o t i o n t o D e m o l i s h ”

or specifically reque sted a dem ol i tion order a s p a r t o f i t s c o n t e m p t p e t i t i o n , Indy Diamond was somehow not on notice that a demolition sanction wasCourt of Appeals of I ndiana | Opinion 18A

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possible and thus it has been den i ed an opportunity to be heard in a meaningful

m anner on the issue

. 7 We find Indy Diamond ’s argument disingenuous.

[22] Indeed, Indy Diam ond made this same due process argument to the trial court d uring the April 2018 hearing on the City’s motion for clarifica t ion

. The trial court ackn owledged the due process concern s with its original de molition order and stated on the record that it reco gnized the need to attach purge co nditions to its c ontempt sanction and to allow Indy Diamond an additional op portunity
to b e heard on the demolition iss u e
. C ounsel for Indy Diamon d made the following recommendation to the trial court: My recommendation to the Court would be ... rese t this f or sixty days. Our client [is] o n notice that the City is requesting demoli tion

. My clie n t then will have sixty days to present to the Court, uh, docu mentation; either a signed purcha se agreement, proof of funding, everyt hing else we need to show the Cour t that our clients our serious ab out moving this forward.... I think that will resolve all i ssues. So, my client then has fair not ice 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 Di amond also a sserts that the demolition order vio late s Ind iana Tr ial Ru le 15(B) because the issue o f dem olition was neither raised in the pleadings nor tried by express or implied co nsen t of the parties. See Ind . Trial Rule 15(B) (providing that “[w]hen iss ues not raised by the pleadings are tried by ex press o r implied conse nt of the parties, they shal l be treated in all respects as if they had been raised in the pleadings” and that a n “a mendment of the pleadings may be necessary to cause them to con form to the evidenc e. ”) As we will explain more fully, d emol ition was no t a new “ issue” that need ed to be tried by express or implied consent or to which an amendment to the City’s original pet ition to conform the evidence would have been necessary . Rathe r, the demolition order is a civil contempt rem edy fas hi oned by the t ria l court within its inhere nt di scretion in contempt matters . Moreover, Indy Diamond has never object ed to the City’s o ral request for demolition on grounds that the request violated I n diana T rial Rule 15(B)

. T hus, Indy Diamond has waived this a rgument on a ppeal

. See Van Winkle v. Nash , 761 N.E.2d 856, 859 (Ind. Ct. App. 2002) ( f ai lu re to raise an issue before the trial cour t result s in waiver o f that issue on appeal).Court of Appeals of I ndiana | Opinion 18A

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we can impress upon our clie nt, guys , it looks like this building is coming down unless, one, we convince the Co urt that it s h ouldn’t, or two, we’ve got valid proof showing the Court that we’ve got real dollars coming in to the community. That would be my rec ommendation.

Tr. Vol. 2 at 63 (emp hases added)

. The trial court did precisely what Indy Diamond ’ s counsel requeste d : it en t ered an order h olding the original d emolition order in abeyance 8 and reset the mat ter for an other evidentiary hearin g
. A subse quen t hearing was held, during which Indy Dia mond present ed evidence and testimony specifically r egarding the demolition issue. Ind y Diamond has been afforded more than an adequate oppo rtunity to be heard . There has been no denial of due process.


### Section 3

– There is no evidence that the trial judg e w a s personally biased against Indy D iamond . [23] Finally, we will br iefly addre ss Ind y Diamond ’ s assertion t h a t w e s h o u l d

r e v e r s e t h e t r i a l c o u r t ’ s d e m o l i t i o n o r d e r b e c a u s e the trial judge w a s personal ly biased against Indy Diamond

. The law p resumes that a trial judge is unbiased

. Rich ardson v. Richardson , 34 N.E.3d 696, 7 03

- 04 (In d. Ct. App. 2015). To

over come that presumption, the party asserting bias must establish that the trial judge has a persona l prejudice for or against a party. Id

. “Adverse rulings and findings by the trial ju dge do not constitute bias per se. Ins tead, pre judice must

8 We note that Ind y Diamond requested that the trial court set aside t he ori ginal demol i tion order. The trial court declined to do so, and instead held the order in abeyance . This was eminently reasonable unde r the circumstances

.Court of Appeals of I ndiana | Opinion 18A

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be shown by th e judge ’ s trial conduct; it canno t be inferred from his [or her] subjective views.” Id . (citation s omitted). Said differently, a party “mu st show that the trial judge ’ s action and dem eanor crossed the barrier of impartial ity and
p rejudi c ed” that party ’ s ca se. Id . (citing Flowers v. State , 738 N.E.2d 1051, 1061 (Ind. 2000) )

.
[24] Indy Diamond directs us to various stateme nts and comments made by the trial judge on the record which it claims support a finding that the trial judg e was per sonall y biased against Ind y Diamond . Among other things, In dy Diamond accuses the trial judge of injecting her personal fee lings about the Real Estate , i n commentin g that she was “thoroughly disgusted” by the condition of the Real Estate, that she felt bad that “ homeowners in proxi mity 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

. Add itionally, Indy Diamond complains that th is particular trial judge had not been inv olved in the c a se from the beginnin g so that her comments illustrate d a “clear personal bias” rather than views garnered based upon her involvement in the case itself. Appe llant’s Br. at 27.

[25] After reviewing the recor d, we conclude that Indy Diamond has fa iled to show
t h at the trial judge ’ s actions or demeanor here were in any way improper or crossed the barrier of impartiality . In fa ct, there is ab solutely no evidence of
pe rsonal bias , and we find Indy Diamond ’ s accus ation against this trial judge, which is essentia lly a claim that the judge violated the Indiana Co de of JudicialCourt of Appeals of I ndiana | Opinion 18A

- OV

- 2 552 | August 15, 2019 P age 18 of 19

Conduct, 9 to be out of line

. Simply put, Indy Diamond is attacking the integrity of this trial judge because she has issued a clear a nd strong sanction for Indy Diamo nd’s continu al disregard fo r the court ’ s authority a nd its previous order attempting to abate this public nuisance

. As far as the judge ’ s comments that
may app ear t o reflect her personal opinion regarding the condition o f the Real Estate , we obser ve that those commen ts were made in the context of contempt proceedi ngs and were merely observations supported by the evide nce . Such evidence includ ed dozens upon do ze ns of photographs clearly depicting the deplorable condition of the R e al Estate. Indy Diamond has not demonstrated
t hat the trial judge was biased

.
[26] P ursuant to India na Appellat e Rule 6 6(E) , we h ave discretionary authority to

ass e ss damages, in c luding appe llate a ttorney’s fees , in the event an appeal is “permeated with meritl essness, bad faith, frivolity, harassment , vexatio usness, or purpose of delay.” Tipton v. Estate of Hofman n , 118 N.E.3d 771, 777 (Ind. Ct. App. 2019)

. Althou gh Indy Diamond ’ s claim of bias against the trial judge is , in our opinion, unfounded and me ritless , we choose to exerc ise restraint and decline to assess appellate damages against Indy Diamond

.

9 Indiana Judicial Conduct Canon 2 requires a judge to “perform the duties o f judicial of fice im partia lly, compete ntl y, an d diligently.” Judges must be “objective and open

- minded.” Rule 2.2, c m t

. 1. “A judg e shall perform the dutie s of judicial office ... without bias or prejudice.” Rule 2.3(A). A judge shall disquali fy himsel f or herself “in any proceedi ng in which the j udge’s impartiality might reasonably be questioned , ” including in circumstances when “th e judge has a personal b ias or prejudice concerning a party.” Rule 2.11(A).Court of Appeals of I ndiana | Opinion 18A

- OV

- 2 552 | August 15, 2019 P age 19 of 19

[27] In sum, Indy Diamond has not met its burden to demonstrate that the trial court abused its discre tion in denying its second motion to corr ect error
. T he tri al court ha d inherent authority to enter a demo liti on order as a sanction for Indy Di amond’s contempt, and Indy Diamond has been afforded ample due
proce ss in this matter. W e affirm the trial court’s demolition order in all

r espects.

[28] Aff

irmed

.
Bradford, J., and Tavi tas, J., concur.