mike-meyer-trustee-v-susan-orth-allen-county-treasurer-and-tera-k ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
Aug 11 2014, 10:49 am
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.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES:
N. REED SILLIMAN Attorney for LRB Holdings, Inc.
KAREN T. MOSES JON L. ORLOSKY
Faegre Baker Daniels LLP Muncie, Indiana
Fort Wayne, Indiana
Attorney for Allen Cty. Treasurer & Auditor
THOMAS A. HARDIN
Shine & Hardin, LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MIKE MEYER, Trustee, )
)
Appellant-Respondent, )
)
vs. ) No. 02A03-1310-MI-397
)
SUSAN ORTH, Allen County Treasurer, and )
TERA K. KLUTZ, Allen County Auditor, )
)
Appellees-Plaintiffs, )
_________________________________________
LRB HOLDINGS, INC., )
)
Appellee-Plaintiff, )
)
vs. )
)
MARK LINKER, DEBORAH LINKER, )
AMERICA’S WHOLESALE LENDER, SUMMIT )
FINANCIAL, LLC, THE 1998 CHAFFEE )
IRREVOCABLE TRUST c/o MIKE MEYER, )
Trustee, )
)
Appellants-Defendants. )
APPEAL FROM THE ALLEN CIRCUIT COURT
The Honorable Thomas J. Felts, Judge
Cause No. 02C01-1012-MI-2196
August 11, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Mike Meyer appeals the denial of his Motion to Vacate Judgment Pursuant to Trial
Rule 60 (“60(B) Motion”). We affirm.
FACTS AND PROCEDURAL HISTORY
Meyer is the trustee of The 1998 Chaffee Irrevocable Trust (“Chaffee Trust”), which
purchased property at 2928 Arden Cove in Fort Wayne (“Arden Cove Property”) on August
15, 2006. The deed indicated tax bills should be sent to the Arden Cove Property address,
but no property taxes were paid after the Chaffee Trust bought it. As a result, the Arden
Cove Property became eligible for tax sale in 2009.
On September 11, 2009, the Auditor sent notice of the tax sale to the Arden Cove
Property address via certified mail. The notice was returned with a label stating: “Return to
Sender, No Such Number, Unable to Forward.” (App. at 65.) The Auditor then sent notice
of the tax sale to the Arden Cove Property address via first class mail, and that notice was
returned with the same label.
Scot Harber, an employee of the Auditor’s Office, then searched the office records for
“a more complete or accurate address for the owner of the Real Estate,” (id. at 93), but was
2
unable to determine one. Harber then searched the Secretary of State’s records and found an
address he thought was accurate. The Auditor sent notice of the tax sale via certified mail to
“Meyer Mike Trs” at that address. (Id. at 66.) The recipient initially accepted the notice but
then called the Auditor’s Office to report he was not the trustee of the Chaffee Trust.
The Auditor’s Office proceeded with the tax sale, and LRB Holdings, Inc. (“LRB”)
purchased the Arden Cove Property. On December 7, 2010, the trial court directed the
Auditor’s Office to issue a Tax Deed to LRB. LRB recorded the deed on December 29 and
then initiated a quiet title action.1 The trial court entered a decree that quieted title to the
Arden Cove Property on July 5, 2011, giving all rights thereto to LRB.
Meyer did not discover the Arden Cove Property had been sold until he attempted to
sell it on behalf of the trust almost two years later. On April 22, 2013, Meyer filed the 60(B)
Motion, asking the trial court to set aside and vacate the Order Directing Issuance of a Tax
Deed. Meyer designated evidence of six handwritten addresses for “Michael Meyer,” one of
which was Meyer’s correct address, which matched records in the “Allen County - Public
Access Tax Information” database. (Id. at 73.) However, during the hearing, the Auditor’s
counsel indicated Harber did not write the list of addresses and did not know who did. The
trial court denied Meyer’s 60(B) Motion.
DISCUSSION AND DECISION
Trial Rule 60(B) states, in relevant part, “On motion and upon such terms as are just,
1
As part of this process, LRB sent notice of its complaint to quiet title to the Arden Cove Property, which was
returned as undeliverable, and then LRB served notice by publication.
3
the court may relieve a party or his legal representative from a judgment, including a
judgment by default for the following reasons: . . . (6) the judgment is void.” It is the
movant’s burden, here Meyer, to “demonstrate that the relief is both necessary and just.”
DeLage Landen Fin. Servs., Inc. v. Cmty. Mental Health Ctr., 965 N.E.2d 693, 696 (Ind. Ct.
App. 2012), trans. denied. Rule 60(B) “affords relief in extraordinary circumstances which
are not the result of any fault or negligence on the part of the movant.” Goldsmith v. Jones,
761 N.E.2d 471, 474 (Ind. Ct. App. 2002), reh’g denied.
At the hearing on the 60(B) Motion, the parties presented no evidence but argued
about the proper application of the law to the designated evidence. As recently noted by our
Indiana Supreme Court:
Relief from judgment under Trial Rule 60 is an equitable remedy within the
trial court’s discretion. Accordingly, we generally review a trial court’s Rule
60 ruling only for abuse of discretion. But when “the trial court rules on a
paper record without conducting an evidentiary hearing,” as happened here, we
are “in as good a position as the trial court . . . to determine the force and effect
of the evidence.” Under those circumstances, our review is de novo.
In re Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind. 2013) (internal citations omitted). Thus,
we review de novo the denial of Meyer’s Motion.
“Failure to comply substantially with statutes governing tax sales renders void
subsequent tax deeds which deprive owners of their property.” Kessen v. Graft, 694 N.E.2d
317, 320-21 (Ind. Ct. App. 1998), trans. denied. Although “the issuance of a tax deed creates
a presumption that a tax sale and all of the steps leading up to the issuance of the tax deed are
proper . . . this presumption may be rebutted by affirmative evidence to the contrary.” In re
4
Tax Sale in Lake Cnty., 926 N.E.2d 524, 527 (Ind. Ct. App. 2010). A person “may, upon
appeal, defeat the title conveyed by a tax deed executed under this chapter only if: . . . (7) the
notices required by . . . IC 6-1.1-24-4 . . . were not in substantial compliance with the manner
prescribed in [this] section[].” Ind. Code § 6-1.1-25-16. In his complaint, Meyer asserted the
tax sale of the Arden Cove Property was void because the Auditor did not comply with Ind.
Code § 6-1.1-24-4 when attempting to provide notice to him2 of the tax sale. We disagree.
Ind. Code § 6-1.1-24-4 states, in relevant part:
(a) Not less than twenty-one (21) days before the earliest date on which the
application for judgment and order for sale of real property eligible for sale
may be made, the county auditor shall send a notice of the sale by certified
mail, return receipt requested, to:
(1) the owner of record of real property with a single owner; or
(2) at least one (1) of the owners, as of the date of certification, of real
property with multiple owners;
at the last address of the owner for the property as indicated in the records of
the county auditor on the date that the tax sale list is certified. In addition, the
county auditor shall mail a duplicate notice to the owner of record, as
described in subdivisions (1) and (2), by first class mail to the owners from
whom the certified mail return receipt was not signed and returned.
Additionally, the county auditor may determine that mailing a first class notice
to or serving a notice on the property is a reasonable step to notify the owner,
if the address of the owner is not the same address as the physical location of
the property. If both notices are returned due to incorrect or insufficient
addresses, the county auditor shall research the county auditor records to
determine a more complete or accurate address. If a more complete or
accurate address is found, the county auditor shall resend the notices to the
address that is found in accordance with this section. Failure to obtain a more
2
On appeal, Meyer also argues the Auditor did not comply with Ind. Code § 6-1.1-24-4 because she did not
attempt to find an address for the Chaffee Trust. However, he did not advance this argument before the trial
court, and thus it is not available for our consideration. See Runkel v. Miami Cnty. DCS, 875 N.E.2d 369, 373
(Ind. Ct. App. 2007) (“In order to properly preserve an issue on appeal, a party must, at a minimum, ‘show that
it gave the trial court a bona fide opportunity to pass upon the merits of the claim before seeking an opinion on
appeal.’”), trans. denied.
5
complete or accurate address does not invalidate an otherwise valid sale. The
county auditor shall prepare the notice in the form prescribed by the state board
of accounts. The notice must set forth the key number, if any, of the real
property and a street address, if any, or other common description of the
property other than a legal description. The notice must include the statement
set forth in section 2(a)(4) of this chapter. . . . The county auditor must present
proof of this mailing to the court along with the application for judgment and
order for sale. Failure by an owner to receive or accept the notice required by
this section does not affect the validity of the judgment and order. The owner
of real property shall notify the county auditor of the owner’s correct address.
The notice required under this section is considered sufficient if the notice is
mailed to the address or addresses required by this section.
We recently noted Ind. Code § 6-1.1-24-4 places “three progressive duties with respect to
providing notice of an impending tax sale” on the Auditor:
(1) first, the auditor is required to send notice to the owner by certified mail at
the address listed for the owner in the auditor’s records, (2) second, if the
return receipt is not signed and returned, the auditor is required to send a
duplicate notice by first class mail to the same address, and (3) finally, if both
notices are returned due to an incorrect or insufficient address, the auditor’s
office is required to search its records for a more complete or accurate address.
Farmers Mut. Ins. Co. of Grant and Blackford Counties v. M Jewell, LLC, 992 N.E.2d 751,
756 (Ind. Ct. App. 2013), trans. denied. That list is not exhaustive, however, as the statute
also indicates the Auditor “shall resend” the notices to the “more complete and accurate
address” if one is found. Ind. Code § 6-1.1-24-4.
Meyer argues the Auditor did not meet “her statutory obligations to search the county
records, determine a more accurate address, and resend the notices to that address.” (Br. of
Appellant at 8.) We recently decided a similar matter and therein we explained:
Because I.C. § 6-1.1-24-4 was amended in response to the Supreme
Court’s decision in Jones v. Flowers and for the purpose of codifying the due
process principles set forth in that case, we interpret the statute with the
reasoning of that case in mind. In Jones v. Flowers, the Court noted that
6
“[d]ue process does not require that a property owner receive actual notice
before the government may take his property.” 547 U.S. at 226, 126 S.Ct.
1708. Instead, it is sufficient if notice is “reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.” Id. (quoting Mullane
v. Cent. Hanover Bank & Trust Co., 339 U.S. at 314, 70 S.Ct. 652). And
“when notice is a person’s due . . . [t]he means employed must be such as one
desirous of actually informing the absentee might reasonably adopt to
accomplish it[.]” Id. at 229, 126 S.Ct. 1708 (quoting Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. at 315, 70 S.Ct. 652).
Thus, in the due process analysis, the focus of the inquiry is not on the
ultimate result of the auditor’s efforts, i.e., whether the landowner has received
actual notice. Instead, the focus is on the efforts themselves, and whether they
are consistent with the actions of one desirous of actually informing the
landowner of the impending tax sale. We conclude that the same is true of the
statute. When both pre-tax sale notices are returned due to an incorrect or
insufficient address, both due process and I.C. § 6-1.1-24-4 require further
action from the auditor. The statute prescribes the specific action the auditor
must take in such a case - the auditor’s office must search its records for a
more accurate or complete address. Whether a search of the auditor’s records
would have produced an alternate address and resulted in Farmers Mutual
receiving actual notice in this case is not the salient question; rather, the
question is whether the auditor’s office performed the duties imposed by the
statute.
Jewell, 992 N.E.2d at 757-8.
In the instant case, the Auditor sent notices of tax sale via certified and first class mail
to the Arden Cove Property, both of which were returned. The Auditor then “checked the
records of the Auditor and did not determine a more accurate address for the Trust or Mike
Meyer, Trustee.” (Tr. at 10.) The Auditor, believing it had not found any accurate addresses,
checked the records of the Secretary of State “thinking the Trustee may be corporate.” (Id.)
The Auditor located “something that he thought, uh, might be reasonably calculated to
provide notice to Mike Meyer, Trustee.” (Id. at 10-11.) The Auditor then mailed notice via
7
certified mail to the address located through the Secretary of State. The mail was accepted,
but the recipient, Michael D. Meyer, notified the Auditor he was not the trustee of the
Chaffee Trust. The Auditor then held the tax sale on the Arden Cove Property.
Meyer designated evidence someone wrote six different addresses on a piece of paper,
one of which, coincidentally, was his home address, and that the Auditor did not send notice
to those addresses. During the hearing, the Auditor’s counsel stated, regarding the six
addresses, “that’s not Mr. Harber’s handwriting. We’re not sure where that came from.” (Tr.
at 11.) Meyer did not depose Harber to ask about his search methods or to inquire about the
criteria by which he determined whether any other addresses found were not more complete
or accurate than the one provided on the Arden Cove Property’s deed. Without evidence
demonstrating Harber’s search was improper, we will follow the statute’s presumption that
the search was adequate. See Ind. Code § 6-1.1-24-4 (“Failure to obtain a more complete or
accurate address does not invalidate an otherwise valid sale.”). Based on the record before
us, we cannot say Meyer rebutted the presumption that the Auditor complied with Ind. Code
§ 6-1.1-24-4. See D.L.D. v. L.D., 911 N.E.2d 675, 680 (Ind. Ct. App. 2009) (trial court’s
denial of Father’s Rule 60(B)(6) motion affirmed because Father could not demonstrate the
judgment against him was void based on lack of notice), reh’g denied, trans. denied.
Therefore, we affirm the denial of Meyer’s 60(B) motion.
Affirmed.
KIRSCH, J., and BAILEY, J., concur.
8