FILED Jul 20 2016, 8:44 am MEMORANDUM DECISION CLERK Indiana Supreme Court Pursuant to Ind. Appellate Rule 65(D), Court of Appeals and Tax Court
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 ATTORNEY FOR APPELLEE Jon L. Orlosky David W. Stone IV Muncie, Indiana Stone Law Office & Legal Research Anderson, Indiana
IN THE COURT OF APPEALS OF INDIANA
M. Jewell, LLC, July 20, 2016 Appellant-Defendant, Court of Appeals Case No. 48A04-1510-MI-1715 v. Appeal from the Madison Circuit Court Ezeguiel Garcia and The Honorable William Shoemaker1, Thomas Newman, Jr., Judge Appellee-Plaintiff. Trial Court Cause No. 48C03-1410-MI-639
1 William Shoemaker was a party below but has not appeared in this proceeding.
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-MI-1715| July 20, 2016 Page 1 of 7 Kirsch, Judge.
[1] M. Jewell, LLC (“Jewell”) appeals the denial of a Motion to Correct Errors
regarding its Order Setting Aside a Tax Deed and Sale and raises the following
restated issue: whether the trial court abused its discretion in denying the
motion.
[2] We affirm.
Facts and Procedural History [3] At all times here relevant, Ezeguiel Garcia (“Garcia”) was the owner of
property at 2830 East Cross Street, Anderson, Indiana (“the Property”). The
property was used as a religious organization and was exempt from property
tax; however, Indiana law provides for the collection of unpaid drainage
assessments in the same manner as that for property tax assessments. Indiana
Code section 6-1.1-11-9.
[4] Due to an unpaid ditch assessment, the Property was included in Madison
County’s October 2013 tax sale. The Madison County Auditor (“the Auditor”)
listed Garcia as the owner of the Property and his address as “1350 N.
Delaware Street Indianapolis, Indiana 46202.” SRI was the company
responsible for providing tax sale notices on behalf of the Auditor. In July and
August of 2013, SRI sent a Notice of Tax Sale and a Notice of Redemption
Period to “1350 N. Delaware St. 2880 E. Indianapolis, Indiana” (emphasis
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-MI-1715| July 20, 2016 Page 2 of 7 added). Appellant’s App. at 18, 21, 24. The notices were addressed to Izequiel
Garcia, not Ezeguiel Garcia, the name of the grantee on the deed. Id. at 21, 24.
[5] Jewell purchased the tax certificate for the Property at the tax sale in October
2013. Tr. at 10. In February 2014 Jewell sent notices of sale and notices of date
of expiration of period of redemption to the same nonexistent address used by
SRI on behalf of the Auditor and the address listed on the Corporate Warranty
Deed. All of the notices of sale were returned “Undeliverable as Addressed.”
Appellant’s App. at 34.
[6] In August of 2014, Jewell posted notice of the tax sale on the property. The
notice was placed on a side door of the church which was rarely used. Id. at 6.
In October of 2014, Jewell sent notice of filing petition for tax deed by both
U.S. mail, certified with return receipt requested and by first class US Mail to
both addresses. One of the notices of filing petition for tax deed was delivered
to the Delaware Street address. Id. at 47. Jewell then filed a petition for a tax
deed, and the trial court entered its Order Directing the Auditor of Madison
County to Issue a Tax Deed for the Property to Jewell.
[7] Jewell posted a notice to vacate the property on the front door of the church,
Garcia challenged the issuance of the Order stating: “[he] never received a
notification they sent it to a [sic] address we don’t have. Our address is 1924
Yandes St. Indianapolis St.” Appellant’s App. at 50-52.
[8] Following a hearing on Garcia’s motion on April 13, 2015, the trial court
determined that Garcia had not been properly notified of the Tax Sale and that
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-MI-1715| July 20, 2016 Page 3 of 7 Jewell’s attempts to cure the lack of notice for the tax sale proceedings and
notice of sale were not reasonably calculated to apprise Garcia of the
proceedings. The court set aside its Order Directing the Auditor of Madison
County to Issue a Tax Deed for the Property. Id. at 5-6.
[9] Jewell filed a Motion to Correct Errors, which the trial court denied, and Jewell
now appeals.
Discussion and Decision [10] In general, we review a trial court’s ruling on a motion to correct errors for an
abuse of discretion. Ind. Bureau of Motor Vehicles v. Charles, 919 N.E.2d 114, 116
(Ind. Ct. App. 2009); Speedway SuperAmerica, LLC, v. Holmes, 885 N.E.2d, 1265,
1270 (Ind. 2008), reh’g denied. It is an abuse of discretion when the trial court’s
decision is against the logic and effect of the facts and circumstances before it,
or the reasonable inferences drawn from them. Lighty v. Lighty, 879 N.E.2d
637, 640 (Ind. Ct. App. 2008), reh’g denied. We will not disturb the trial court’s
order unless it was clearly erroneous. Infinity Prods., Inc. v. Quandt, 810 N.E.2d
1028, 1031 (Inc. 2004). Only the evidence most favorable to the judgment and
all reasonable inferences drawn therefrom will be considered. Id. We will not
reweigh the evidence or assess the credibility of the witnesses. Id. at 1032.
[11] Indiana Code section 6-1.1-24-4 requires the Auditor to notify the owner of
record that the property is eligible to be sold in a tax sale and of the redemption
process. The Indiana Supreme Court has summarized the notification
procedures as follows:
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-MI-1715| July 20, 2016 Page 4 of 7 The property owner and any person with a “substantial property interest of public record” must each be given two notices.
The first notice announces the fact of the sale, the date the redemption period will expire, and the date on or after which a tax deed will be filed (i.e., redemption notice). The second notice announces that the purchaser has petitioned for a tax deed. (i.e., notices of petition for tax deed).
Ienma v. JP Morgan Chase Bank, N.A., 992 N.E.2d at 738-39 (Ind. Ct. App. 2013)
(quoting Tax Certificate Invs., Inc. v. Smethers, 714 N.E.2d 131, 133 (Ind. 1999)
(internal citations omitted)).
[12] Jewell contends that Garcia owed assessment fees for the Property, that notices
were mailed by certified and First Class Mail to the address of record in the
Auditor’s office, and that all notices required under Indiana Code sections 6-
1.1-24-4, 6-1.1-25-4.5(d) and 6-1.1-25-4.6(a) were reasonably calculated to
inform Garcia of the pending proceedings. It also contends that the notices sent
to Garcia were substantially compliant with the statutes, that the tax sale was
valid and should have been sustained, and that the trial court erred when it
denied its motion to correct errors following the setting aside of the tax deed
and sale of the Property.
[13] Jewell also contends that there was no due process basis to defeat the tax sale.
It argues that even though Garcia said he did not receive any of the mailed
notices, “[d]ue process does not require that a property owner receive actual
Free access — add to your briefcase to read the full text and ask questions with AI
FILED Jul 20 2016, 8:44 am MEMORANDUM DECISION CLERK Indiana Supreme Court Pursuant to Ind. Appellate Rule 65(D), Court of Appeals and Tax Court
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 ATTORNEY FOR APPELLEE Jon L. Orlosky David W. Stone IV Muncie, Indiana Stone Law Office & Legal Research Anderson, Indiana
IN THE COURT OF APPEALS OF INDIANA
M. Jewell, LLC, July 20, 2016 Appellant-Defendant, Court of Appeals Case No. 48A04-1510-MI-1715 v. Appeal from the Madison Circuit Court Ezeguiel Garcia and The Honorable William Shoemaker1, Thomas Newman, Jr., Judge Appellee-Plaintiff. Trial Court Cause No. 48C03-1410-MI-639
1 William Shoemaker was a party below but has not appeared in this proceeding.
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-MI-1715| July 20, 2016 Page 1 of 7 Kirsch, Judge.
[1] M. Jewell, LLC (“Jewell”) appeals the denial of a Motion to Correct Errors
regarding its Order Setting Aside a Tax Deed and Sale and raises the following
restated issue: whether the trial court abused its discretion in denying the
motion.
[2] We affirm.
Facts and Procedural History [3] At all times here relevant, Ezeguiel Garcia (“Garcia”) was the owner of
property at 2830 East Cross Street, Anderson, Indiana (“the Property”). The
property was used as a religious organization and was exempt from property
tax; however, Indiana law provides for the collection of unpaid drainage
assessments in the same manner as that for property tax assessments. Indiana
Code section 6-1.1-11-9.
[4] Due to an unpaid ditch assessment, the Property was included in Madison
County’s October 2013 tax sale. The Madison County Auditor (“the Auditor”)
listed Garcia as the owner of the Property and his address as “1350 N.
Delaware Street Indianapolis, Indiana 46202.” SRI was the company
responsible for providing tax sale notices on behalf of the Auditor. In July and
August of 2013, SRI sent a Notice of Tax Sale and a Notice of Redemption
Period to “1350 N. Delaware St. 2880 E. Indianapolis, Indiana” (emphasis
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-MI-1715| July 20, 2016 Page 2 of 7 added). Appellant’s App. at 18, 21, 24. The notices were addressed to Izequiel
Garcia, not Ezeguiel Garcia, the name of the grantee on the deed. Id. at 21, 24.
[5] Jewell purchased the tax certificate for the Property at the tax sale in October
2013. Tr. at 10. In February 2014 Jewell sent notices of sale and notices of date
of expiration of period of redemption to the same nonexistent address used by
SRI on behalf of the Auditor and the address listed on the Corporate Warranty
Deed. All of the notices of sale were returned “Undeliverable as Addressed.”
Appellant’s App. at 34.
[6] In August of 2014, Jewell posted notice of the tax sale on the property. The
notice was placed on a side door of the church which was rarely used. Id. at 6.
In October of 2014, Jewell sent notice of filing petition for tax deed by both
U.S. mail, certified with return receipt requested and by first class US Mail to
both addresses. One of the notices of filing petition for tax deed was delivered
to the Delaware Street address. Id. at 47. Jewell then filed a petition for a tax
deed, and the trial court entered its Order Directing the Auditor of Madison
County to Issue a Tax Deed for the Property to Jewell.
[7] Jewell posted a notice to vacate the property on the front door of the church,
Garcia challenged the issuance of the Order stating: “[he] never received a
notification they sent it to a [sic] address we don’t have. Our address is 1924
Yandes St. Indianapolis St.” Appellant’s App. at 50-52.
[8] Following a hearing on Garcia’s motion on April 13, 2015, the trial court
determined that Garcia had not been properly notified of the Tax Sale and that
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-MI-1715| July 20, 2016 Page 3 of 7 Jewell’s attempts to cure the lack of notice for the tax sale proceedings and
notice of sale were not reasonably calculated to apprise Garcia of the
proceedings. The court set aside its Order Directing the Auditor of Madison
County to Issue a Tax Deed for the Property. Id. at 5-6.
[9] Jewell filed a Motion to Correct Errors, which the trial court denied, and Jewell
now appeals.
Discussion and Decision [10] In general, we review a trial court’s ruling on a motion to correct errors for an
abuse of discretion. Ind. Bureau of Motor Vehicles v. Charles, 919 N.E.2d 114, 116
(Ind. Ct. App. 2009); Speedway SuperAmerica, LLC, v. Holmes, 885 N.E.2d, 1265,
1270 (Ind. 2008), reh’g denied. It is an abuse of discretion when the trial court’s
decision is against the logic and effect of the facts and circumstances before it,
or the reasonable inferences drawn from them. Lighty v. Lighty, 879 N.E.2d
637, 640 (Ind. Ct. App. 2008), reh’g denied. We will not disturb the trial court’s
order unless it was clearly erroneous. Infinity Prods., Inc. v. Quandt, 810 N.E.2d
1028, 1031 (Inc. 2004). Only the evidence most favorable to the judgment and
all reasonable inferences drawn therefrom will be considered. Id. We will not
reweigh the evidence or assess the credibility of the witnesses. Id. at 1032.
[11] Indiana Code section 6-1.1-24-4 requires the Auditor to notify the owner of
record that the property is eligible to be sold in a tax sale and of the redemption
process. The Indiana Supreme Court has summarized the notification
procedures as follows:
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-MI-1715| July 20, 2016 Page 4 of 7 The property owner and any person with a “substantial property interest of public record” must each be given two notices.
The first notice announces the fact of the sale, the date the redemption period will expire, and the date on or after which a tax deed will be filed (i.e., redemption notice). The second notice announces that the purchaser has petitioned for a tax deed. (i.e., notices of petition for tax deed).
Ienma v. JP Morgan Chase Bank, N.A., 992 N.E.2d at 738-39 (Ind. Ct. App. 2013)
(quoting Tax Certificate Invs., Inc. v. Smethers, 714 N.E.2d 131, 133 (Ind. 1999)
(internal citations omitted)).
[12] Jewell contends that Garcia owed assessment fees for the Property, that notices
were mailed by certified and First Class Mail to the address of record in the
Auditor’s office, and that all notices required under Indiana Code sections 6-
1.1-24-4, 6-1.1-25-4.5(d) and 6-1.1-25-4.6(a) were reasonably calculated to
inform Garcia of the pending proceedings. It also contends that the notices sent
to Garcia were substantially compliant with the statutes, that the tax sale was
valid and should have been sustained, and that the trial court erred when it
denied its motion to correct errors following the setting aside of the tax deed
and sale of the Property.
[13] Jewell also contends that there was no due process basis to defeat the tax sale.
It argues that even though Garcia said he did not receive any of the mailed
notices, “[d]ue process does not require that a property owner receive actual
notice before the government may take his property.” Jones v. Flowers, 547 U.S.
220, 226 (U.S. 2006). Jewell further asserts that the physical posting on the Court of Appeals of Indiana | Memorandum Decision 48A04-1510-MI-1715| July 20, 2016 Page 5 of 7 Property door was an appropriate and effective way of ensuring that a person is
actually apprised of proceedings against him and that Garcia failed to notify the
Auditor of his correct address.
[14] The tax sale process requires the issuance of notices to the property owner. Ind.
Code §§ 6-1.1-24-4, 6-1.1-25-4.5(d) and 6-1.1-25-4.6(a). Only if the county
auditor gives notice of the sale to the owner of record at the time of the sale is a
purchaser entitled to a tax deed to the property. Ind. Code § 6-1.1-25-
4.5(a)(3)(B). Finally, a person may, upon appeal, defeat the title conveyed by a
tax deed if the notices required by Indiana Code section 6-1.1-24-4, and sections
4.5 and 4.6 of chapter 25 were not in substantial compliance with the manner
prescribed in those sections. Ind. Code section 6-1.1-25-16(7).
[15] Here, the certified notices before the sale were not sent to the last address of the
owner listed on the deed. SRI, who was responsible for providing notice for the
Auditor, used the same incorrect address for more than one notice that was sent
to Garcia, and SRI misnamed the owner in multiple notices. This did not
constitute substantial compliance with the statutory requirements. Garcia was
entitled to notice before and after the tax sale; the post-sale notice that was
signed for at the Delaware Street address, does not cure lack of notice before the
sale.
[16] The trial court rejected Jewell’s assertion that the notice posted on the
Property’s side door was sufficient notice observing “[i]nterestingly, when the
Plaintiff’s posted a subsequent notice demanding [Garcia] to vacate the real
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-MI-1715| July 20, 2016 Page 6 of 7 estate; that notice was posted conspicuously on the front door to the church.”
Appellant’s App. at 6.
[17] The trial court did not err when it denied Jewell’s motion to correct error.
[18] Affirmed.
[19] Riley, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-MI-1715| July 20, 2016 Page 7 of 7