Marion County Auditor v. Sawmill Creek, LLC

964 N.E.2d 213, 2012 WL 962657, 2012 Ind. LEXIS 45
CourtIndiana Supreme Court
DecidedMarch 21, 2012
Docket49S02-1106-CV-364
StatusPublished
Cited by50 cases

This text of 964 N.E.2d 213 (Marion County Auditor v. Sawmill Creek, LLC) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marion County Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213, 2012 WL 962657, 2012 Ind. LEXIS 45 (Ind. 2012).

Opinions

DICKSON, Justice.

This appeal challenges a judgment setting aside a tax deed. The deed had been issued to McCord Investments, LLC, upon the petition of the Marion County Auditor following the one-year redemption period after a tax sale. But, in response to a motion to set aside the tax deed filed on behalf of Sawmill Creek, LLC, the trial court conducted an evidentiary hearing, ultimately setting aside the tax deed on grounds that the Auditor’s effort to notify Sawmill Creek of the tax sale was constitutionally deficient for failing to meet the requirements of due process. We granted transfer and now reverse the trial court.

Sawmill Creek, LLC (“Sawmill”), is a Wyoming entity managed by E.J. “Bill” Simpson. In late 2001, Simpson, on behalf of Sawmill, purchased a four acre tract of unimproved land on Rockville Road in Marion County (“the Property”). There was, however, a miscommunication during the negotiations which resulted in the closing statement, the general warranty deed, and the title insurance policy naming the purchaser as “Saw Creek Investments, L.L.C.” (“Saw Creek”), instead of the proper name “Sawmill Creek, LLC.”1 Tr. at 18, 20, 40; Sawmill’s Exs. 6, 7, 8. None of the documents related to the Property referenced Sawmill, and Simpson did not [215]*215notice the error. The Property was recorded under the name Saw Creek. At that time, Simpson operated his companies, including Sawmill, from an address on Dandy Trail in Indianapolis (“Dandy Trail address”). The addresses thus connected to the Property were its physical location on Rockville Road and the Dandy Trail address.

In late 2002 through early 2003, Simpson moved his operations from the Dandy Trail address to Northfield Drive in Brownsburg (“Northfield Drive address”). At that time, Simpson sent a letter to the Marion County Clerk providing notice of the address change. That letter referenced Sawmill and Cripple Creek Investments, LLC, but not Saw Creek. Consequently, the mailing address for the Rockville Road property was not updated, and tax bills continued to be sent to the Dandy Trail address. Sawmill did not notice that it was not receiving the tax bills for the Property, and the taxes became delinquent. In the summer of 2005, the Marion County Auditor (“the Auditor”) set the Property for tax sale.

The Auditor sent the pre-sale notice, as required by the statute in effect at the time,2 via certified mail to the Dandy Trail address.3 The notice was returned, stamped “NOT DELIVERABLE AS ADDRESSED, UNABLE TO FORWARD.” Tr. at 75-76; Sawmill’s Ex. 17. Additionally, the Auditor published the list of properties set for sale in the newspaper, on the Auditor’s website, and on a list posted outside of the Marion County Clerk’s office. The Property was sold at tax sale in October 2005 to McCord Investments, LLC (“McCord”), and the one year statutory redemption period began at that time. The Auditor then employed a title company to research the Property. This search included not only the chain of title and potential lien-holders but also an attempt to locate Saw Creek through the records of the Indiana Secretary of State and the Phonebook. The title company was unable to locate Saw Creek because that entity did not exist. Nor did the search reveal Sawmill as the true owner. The title company did, however, locate two addresses for the previous owner, Cloverleaf Properties (“Cloverleaf’), one on Professional Circle and the other on Rockville Road (the location of the Property). Following the title search, the Auditor sent a post-sale notice4 via certified mail to Saw Creek at the Dandy Trail address. The notice was again returned, stamped “NOT DELIVERABLE AS ADDRESSED, UNABLE TO FORWARD.” Tr. at 84; Sawmill’s Ex. 20. The Auditor also sent notice to Cloverleaf at the addresses located in the title search: to the Professional Circle address via certified mail and to the Rock-ville Road address via first class mail. The certified letter to Cloverleaf was returned, stamped “NOT DELIVERABLE AS ADDRESSED, UNABLE TO FORWARD.” Tr. at 84; Sawmill’s Ex. 20. The first class letter was not returned. At [216]*216the close of the redemption period, the Auditor sent notice of McCord’s request for issuance of a tax deed. The notice was sent to Saw Creek via certified mail at the Dandy Trail address and was again returned, stamped “NOT DELIVERABLE AS ADDRESSED, UNABLE TO FORWARD.” Tr. at 87; Sawmill’s Ex. 22. The Auditor also again sent notice to Cloverleaf via certified mail at the Professional Circle address, that letter was also returned, stamped “ATTEMPTED NOT KNOWN.” Tr. at 87; Sawmill’s Ex. 22. The tax deed was issued to McCord. McCord then listed the Property with a realtor who placed approximately fifteen “For Sale” signs on the Property. One of the realtor’s signs was placed directly in front of a large “For Sale” sign that Simpson erected on the Property in 2003. An acquaintance of Simpson noticed the new signs and inquired about the Property, resulting in Simpson’s discovery that the Property had been sold at tax sale.

Simpson, through Sawmill, filed a motion to set aside the tax deed. The trial court granted Sawmill’s motion, concluding in relevant part,

that the notices of the tax sale of the Property and of Sawmill’s right to redeem that were issued by the Auditor in connection with the October 2005 tax sale were constitutionally deficient, so that the issuance of the Tax Deed to McCord violated due process. As in [Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006)], there were additional reasonable steps that the Auditor practicably could have taken to attempt to provide notice to Sawmill before selling the Property. In particular, the Auditor could have posted a notice on the Property, which the United States Supreme Court noted in Flowers is a “singularly appropriate and effective way of ensuring that a person ... is actually apprised of proceedings against him,” and/or the Auditor could have telephoned the number listed on the “For Sale” sign that was posted on the property.
Although the Auditor also advertised the tax sale in the newspapers, as noted by the Court in Flowers: merely publishing notice in the newspaper, when additional steps could have been reasonably taken, is constitutionally inadequate since “ ‘[cjhance alone’ brings a person’s attention to ‘an advertisement in small type inserted in the back pages of a newspaper.’ ” For the same reason, the posting of the Property within the list of the properties to be sold at tax sale on the Auditor’s website and on a bulletin board outside the Clerk’s office was also constitutionally inadequate under the specific facts of this case.

Findings of Fact, Conclusions of Law, and Judgment, Appellants’ App’x at 21-22. (footnotes omitted) (citations omitted). McCord and the Auditor appealed, and the Court of Appeals affirmed the trial court. Marion Cnty. Auditor v. Sawmill Creek, LLC, 938 N.E.2d 778 (Ind.Ct.App.2010). We granted transfer and now reverse the trial court.

The trial court entered special findings and conclusions according to Indiana Trial Rule 52(A). In such cases our standard of review is two-tiered. Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind.2002).

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Cite This Page — Counsel Stack

Bluebook (online)
964 N.E.2d 213, 2012 WL 962657, 2012 Ind. LEXIS 45, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marion-county-auditor-v-sawmill-creek-llc-ind-2012.