Goodrich v. Dearborn County

822 N.E.2d 1063, 2005 Ind. App. LEXIS 277, 2005 WL 434396
CourtIndiana Court of Appeals
DecidedFebruary 25, 2005
DocketNo. 15A01-0403-CV-139
StatusPublished
Cited by23 cases

This text of 822 N.E.2d 1063 (Goodrich v. Dearborn County) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goodrich v. Dearborn County, 822 N.E.2d 1063, 2005 Ind. App. LEXIS 277, 2005 WL 434396 (Ind. Ct. App. 2005).

Opinions

OPINION

SHARPNACK, Judge.

Tony Goodrich appeals the trial court's denial of his motion for relief from judgment. Goodrich raises one issue, which we restate as whether the trial court abused its discretion by denying his motion for relief from judgment. We reverse and remand.1

The relevant facts follow. On October 18, 2001, property owned by Kristi Johnston with an address of 847 Walnut Ridge, Lawrenceburg, Indiana, was sold at a tax sale, and Goodrich was the successful bidder. On December 16, 2002, Goodrich filed a petition to issue a tax deed, but Johnston and MainSource Bank, formerly known as Peoples Trust Company ("Main-[1066]*1066Source"), the mortgage holder, filed objections. On April 2, 2008, the trial court held a hearing, and Johnston and Main-Source argued that Goodrich was not entitled to a tax deed because he had failed to comply with the notice provisions of Ind. Code § 6-1.1-25-4.5. The trial court took the matter under advisement and issued an order on April 22, 2003, denying Goodrich's petition to issue a tax deed and extending the redemption period for sixty days. The trial court found, in part:

2. [Goodrich] - introduced - evidence which purported to show that he had complied with the notice requirements under IC. [6-1.1-25-4.5]; however, the evidence is contradictory in that the actual notices which Goodrich testified that he sent to Objectors bear the date of May 28, 2002 and the copy of the certified mailing was dated April 2, 2002. Goodrich upon eross-examination then said that he had made an error on the date of the notice and said they had been sent on April 2, 2002. Both [Johnston] and [MainSource] denied ever receiving any notice dated May 28, 2002; however, both Objectors did receive the notice of Petition to Issue a Tax Deed filed and sent to Objectors on December 16, 2002. It is interesting to note that Hidden Valley Lake Property Owners Association and Valley Rural Utility Company also did not receive the May 28, 2002 notice from Goodrich, although Goodrich also provided a notice of May 28, 2002 being sent to but on 2002.
Certified mail by definition of the U.S. Postal Service provides "proof of mailing and delivery". Under I.C. 6-1.1-25-4.5 section 3(B) the purchaser shall give notice required by subsection (a) by sending a copy of the notice by certified mail to (1) owner of record at the time of the sale (et seq.)
and (2) any person with a substantial property interest of public record (et seq. 1).
3. [Johnston], as owner of record, and [MainSource], having a $100,000.00 mortgage on a $200,000.00 home, is an interested party and are entitled to substantial notice and due process in this matter. The case law on these matters is clear that the purpose of tax sales is not to afford some stranger the opportunity to gain title to owner's property to his own great advantage and to the great disadvantage of the owner and his creditors. Goodrich has not substantially complied with the above quoted statutes and with diligent inquiry could have given actual notice to both [Johnston] and [MainSource]. The burden of proof is upon Goodrich to show clear and convincing evidence that he has complied with the aforesaid notice statute and he has failed to do so. The question of whether the Auditor of Dearborn County complied with the required notice provisions need not be addressed because of the failure of Goodrich.
IT IS THEREFORE - CONSIDERED, ORDERED AND - ADJUDGED that the Petition to Issue Tax Deed is hereby denied and the Objectors shall have sixty (60) days from the date of this Order to redeem the real estate.... In the event said property is not redeemed then the Dearborn County Auditor will proceed under the Tax Sale Statutes of Indiana.

Appellant's Appendix at 1838-185. However, the trial court clerk failed to serve notice of the order on the parties.

On September 28, 2003, Goodrich filed a motion for relief from judgment under Ind. Trial Rule 60(B) and argued he did not [1067]*1067receive notice of the April 22, 2003, order and the order was erroneous because he sent proper notices and because the trial court did not have authority to extend the redemption period. Goodrich requested that the trial court treat his motion as a motion to correct error pursuant to Ind. Trial Rule 59. The trial court held a hearing on Goodrich's motion on February 13, 2004. Goodrich again argued that he did not receive notice of the April 22, 2003, order and that the trial court's April 22, 2003, order was erroneous because Goodrich sent proper notices and because the trial court did not have authority to extend the redemption period. The trial court denied Goodrich's motion for relief from judgment.

Goodrich then appealed the trial court's denial of his motion for relief from judgment. Prior to the filing of the appellant's brief, Johnston filed a motion for involuntary dismissal, alleging in part that Good-

rich had erroneously sought relief under Ind. Trial Rule 60(B) rather than Ind. Trial Rule 72(E). Our motions panel held:

1) Instead of filing a motion under Trial Rule 72(BE), the Appellant impermis-sibly sought an extension to initiate an appeal of the April 22, 2008 ruling by filing a Trial Rule 60(B) Motion. See Collins [v. Covenant Mut. Ins. Co., 644 N.E.2d 116, 117-118 (Ind. 1994) ]. Therefore, the appeal of the April 22, 2008 ruling is not properly before the Court.
However, because the Appellant filed a Notice of Appeal within thirty days of the denial of the Trial Rule 60(B) Motion, the appeal of that ruling is properly before the Court.
tok ok te ok
4) Therefore, the Appellee's Verified Motion for Involuntary Dismissal is GRANTED IN PART and DENIED IN PART. More specifically, the Appellant's appeal shall be restricted to issues arising from the denial of the Trial Rule 60(B) Motion, not issues arising directly from the April 22, 2003 order itself.

Motions Panel Order Dated August 31, 2004.

The issue is whether the trial court abused its discretion by denying Goodrich's motion for relief from judgment. However, initially, we must consider Goodrich's request that we reconsider the motions panel's partial dismissal of his appeal. We may reconsider a ruling by the motions panel. Oxford Fin. Group, Lid. v. Evans, 795 N.E.2d 1135, 1141 (Ind. Ct.App.2008). However, "we decline to do so in the absence of clear authority establishing that it erred as a matter of law." Id.; see also Davis v. State, 771 N.E.2d 647, 650 n. 5 (Ind.2002) (discussing the availability of reconsideration of motions panel orders). The motions panel ruled that Goodrich should have filed a motion pursuant to Ind. Trial Rule 72(B) rather than Ind. Trial Rule 60(B), and, therefore, the appeal was restricted to issues arising from the denial of the Ind. Trial Rule 60(B) motion only. We respectfully disagree with the motions panel's order.

This issue requires an analysis of the relationship between Ind. Trial Rule 72(E) and Ind. Trial Rule 60(B). Ind.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Larry D. Penley v. Kelly R. Penley
Indiana Court of Appeals, 2020
William Mallory v. State of Indiana (mem. dec.)
121 N.E.3d 135 (Indiana Court of Appeals, 2019)
Robert Holland v. Lake County Treasurer John Patelas
22 N.E.3d 840 (Indiana Court of Appeals, 2014)
Salvino Verta v. Salvino Pucci
14 N.E.3d 749 (Indiana Court of Appeals, 2014)
Vinod C. Gupta v. Henry S. Busan, Heritage Federal Credit Union
5 N.E.3d 413 (Indiana Court of Appeals, 2014)
Baker & Daniels, LLP v. Coachmen Industries, Inc., Inc.
924 N.E.2d 130 (Indiana Court of Appeals, 2010)
Cox v. Matthews
901 N.E.2d 14 (Indiana Court of Appeals, 2009)
Edwards v. Neace
898 N.E.2d 343 (Indiana Court of Appeals, 2008)
Williams v. State
892 N.E.2d 666 (Indiana Court of Appeals, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
822 N.E.2d 1063, 2005 Ind. App. LEXIS 277, 2005 WL 434396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goodrich-v-dearborn-county-indctapp-2005.