M Doed LLC v. Wyeth Barrington (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Feb 27 2017, 9:50 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES Jon L. Orlosky Phillip E. Stephenson Muncie, Indiana Michael T. Hotz Spitzer Herriman Stephenson Holderead Conner & Persinger, LLP Marion, Indiana

IN THE COURT OF APPEALS OF INDIANA

M Doed, LLC, February 27, 2017 Appellant-Petitioner, Court of Appeals Case No. 27A02-1609-MI-2062 v. Appeal from the Grant Superior Court Wyeth S. Barrington, Pamela L. The Honorable Jeffrey D. Todd, Barrington, City of Marion, Ed Judge Blinn, Jr., Blinn Auto Sales, Trial Court Cause No. Credit Bureau Collection 27D01-1509-MI-184 Services FDBA, Credit Bureau Collection Services FDBA, and Grant County Auditor, Roger Bainbridge, Appellees-Respondents,

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Najam, Judge.

Statement of the Case [1] M Doed, LLC (“Doed”) appeals the trial court’s denial of its Motion to Declare

Tax Sale Void Ab Initio. Doed presents a single dispositive issue for our review,

namely, whether the trial court erred when it denied the motion. We do not

reach the merits of Doed’s appeal, however, because it did not timely file its

motion. We affirm.

Facts and Procedural History [2] On September 18, 2014, Grant County held its “annual tax sale,” and Doed

purchased real estate located at 1015 West 50th Street in Marion. Appellee’s

Br. at 4. The parcel included a house that, according to the “property card” 1

issued by Grant County, had a “Finished Area” of 2161 square feet with three

bedrooms, two bathrooms, and a fireplace. Petitioner’s Ex. 1. Prior to

purchasing the property, Tom Terry, a member of Doed, “looked at the

property sheet” and “did a drive by” to assess the house. Tr. at 10-11. Terry

was not permitted to enter the house until after the tax deed was issued. [3] On September 24, 2015, Doed filed a verified petition for an order directing the

Auditor of Grant County to issue a tax deed. And on October 30, the trial

1 Doed uses the term “property card” to describe the document containing information the county used in assessing the property for real estate tax purposes.

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court granted that petition. On January 19, 2016, Doed filed a Motion to

Allow for a Belated Redemption, which the trial court denied after a hearing. 2 [4] Six months later, on July 14, 2016, Doed filed its motion to declare the tax sale

void ab initio. In that motion, Doed alleged that the tax sale was “based on a

tax assessment including improvement which the property was not subject to

pay” and “is void ab initio.” Appellant’s App. at 7. At a hearing on that

motion, Doed presented evidence that, contrary to the information contained

on the property card, the house: was “two[-]thirds” unfinished; had only two

bedrooms instead of three; had only one bathroom instead of two; and had no

fireplace. Tr. at 13. Doed argued that these discrepancies between the property

card and the condition of the house rendered the assessment for tax purposes

incorrect. Thus, Doed asserted that it was entitled to have the tax sale declared

void ab initio. The trial court denied Doed’s motion. This appeal ensued.

Discussion and Decision [5] Doed contends that the trial court erred when it denied his motion to set aside

the tax sale as void ab initio. An appeal from the issuance of a tax deed can be

filed through either an independent action or a motion pursuant to Trial Rule

60(B). BP Amoco Corp. v. Szymanski, 808 N.E.2d 683, 690 (Ind. Ct. App. 2004),

2 In that motion, Doed sought to set aside the tax sale because, it alleged, Grant County had not timely provided Doed with notice of “building violations.” Corrected Appellee’s App. at 2. Neither in that motion nor in the ensuing hearing did Doed mention that the condition of the house was not consistent with the information contained in the property card.

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trans. denied. Doed did not bring its motion under Trial Rule 60(B), but brought

it as an independent action. Where a party who had the burden of proof at trial

appeals, he appeals from a negative judgment and will prevail only if he

establishes that the judgment is contrary to law. Helmuth v. Distance Learning

Sys., Ind., Inc., 837 N.E.2d 1085, 1089 (Ind. Ct. App. 2005). A judgment is

contrary to law when the evidence is without conflict and all reasonable

inferences to be drawn from the evidence lead to only one conclusion but the

trial court reached a different conclusion. Id. Where, as here, the trial court

entered a general judgment, the judgment will be affirmed if it can be sustained

upon any legal theory consistent with the evidence. Id. In making this

determination, we neither reweigh the evidence nor judge the credibility of

witnesses. Id. Rather, we consider only the evidence most favorable to the

judgment together with all reasonable inferences to be drawn therefrom. Id. [6] In this appeal, Doed maintains that

[t]ax sale purchasers must be able to rely upon the official records of the county in which a tax sale is held when conducting due diligence research prior to a tax sale. If the information supplied by the county is significantly inaccurate, the tax sale purchaser should not be bound by the purchase. . . . In addition, when the inaccuracies contained in the official records affect the manner in which a property is assessed, it opens the door for a tax sale to be set aside under Indiana Code Section 6-1.1-25-16[,] as the property was not subject to the taxes for which it was sold.

Appellant’s Br. at 6. In sum, Doed contends that it is entitled to have the tax

sale set aside both under “the doctrine of estoppel,” id., and under Indiana

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Code Section 6-1.1-25-16(1) (2016), which provides that a person may move to

set aside a tax sale if the “real property described in the deed was not subject to

the taxes for which it was sold.” [7] We do not reach the merits of this appeal because Doed did not timely file its

motion to set aside the tax sale. In Gupta v. Jay County Auditor, 910 N.E.2d 796

(Ind. Ct. App. 2009), Gupta, a tax sale purchaser, moved to set aside the tax

sale because, he alleged, “the real property described in the deed was not subject

to the taxes for which it was sold.” Id. at 801. In particular, Gupta alleged that

the assessment was inaccurate because “[t]he building [wa]s sitting on many

parcels [and a] portion of [the building was] owned by [a] different owner.” Id.

at 798. We affirmed the trial court’s denial of that motion, holding as follows:

This court has held that both available remedies [to appeal the issuance of a tax deed], either a Trial Rule 60(B) motion or an independent action, are subject to the same sixty-day statutory time limit pursuant to Ind. Code § 6-1.1-25-4.6(h). Edwards[ v. Neace], 898 N.E.2d [343,] 347-348 (relying upon BP Amoco Corp., 808 N.E.2d at 690). Because Gupta’s motion was in effect, at least in part, a challenge under Ind. Code § 6-1.1-25-16 and such a motion is subject to the sixty-day time limit of Ind. Code § 6- 1.1-25-4.6, we conclude that the sixty-day time limit applies to Gupta’s motion. . . . Gupta did not file his motion to set aside and declare the tax sale void in the trial court until more than two years and eight months after the trial court entered an order directing the County Auditor to issue a tax deed relating to Gupta’s parcel. We conclude that the trial court properly denied Gupta’s motion to set aside the tax sale deed because the motion was not timely filed.

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[8] Here, in its motion to set aside the tax sale, Doed expressly relied on Indiana

Code Section 6-1.1-25-16 and, therefore, under Indiana Code Section 6-1.1-25-

4.6(h), Doed was required to move the trial court to set the tax sale aside within

sixty days of the trial court’s October 30, 2015, order to issue the tax deed.

Doed did not file its motion until July 14, 2016, more than eight months after

the trial court’s order. Thus, we hold that Doed’s motion to set aside the tax

sale was untimely,3 and the trial court did not err when it denied the motion. [9] Affirmed.

Bailey, J., and May, J., concur.

3 Citing Bank One Trust No. 386 v. Zem, Inc., 809 N.E.2d 873, 879 n.4 (Ind. Ct. App. 2004), trans. denied, Doed maintains that, because the tax sale is “void ab initio, it ‘can be challenged at any time.’” Appellant’s App. at 7. But Doed’s reliance on Zem is misplaced. In Zem, this court affirmed the trial court’s order declaring the tax sale void ab initio because the property was tax-exempt, and there were no taxes owing on the property. 809 N.E.2d at 879. Here, Doed did not dispute that there were delinquent taxes but, rather, argued in essence only that the amount of taxes owing was incorrect given the allegedly inaccurate assessment. This court’s opinion in Gupta is dispositive.

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