Indiana Land Trust Company, f/k/a Lake County Trust Company TR 4340 v. XL Investment Properties, LLC, and LaPorte County Auditor ( 2019 )

OPINION ON REHEARING
FILED
Oct 08 2019, 8:42 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Greg A. Bouwer XL INVESTMENT PROPERTIES,
Jeff Carroll LLC
Koransky Bouwer & Poracky, P.C. Matthew J. Hagenow
Dyer, Indiana Newby, Lewis, Kaminski & Jones,
LLP
LaPorte, Indiana
ATTORNEY FOR APPELLEE
LAPORTE COUNTY AUDITOR
J. Alex Bruggenschmidt
Buchanan & Bruggenschmidt,
P.C.
Zionsville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Indiana Land Trust Company, October 8, 2019
f/k/a Lake County Trust Court of Appeals Case No.
Company TR #4340, 18A-MI-2150
Appellant-Movant, Appeal from the LaPorte Superior
Court
v.
The Honorable Richard R.
XL Investment Properties, LLC, Stalbrink, Jr., Judge
and LaPorte County Auditor, Trial Court Cause No.
Appellees-Respondents 46D02-1509-MI-1642
Court of Appeals of Indiana | Opinion on Rehearing 18A-MI-2150 | October 8, 2019 Page 1 of 4
Baker, Judge.
[1] The Appellees have filed a petition for rehearing, which we grant for the limited
purpose of addressing three of their arguments. First, notwithstanding the
wording in our original opinion, we clarify that the record is not wholly clear as
to whether Trust 4340 provided a current tax notice address for the Property to
the Auditor in a timely fashion. That does not change the result, however, as
the fact that an address search would be difficult or futile does not relieve the
Auditor from its constitutional obligations. E.g., Farmers Mut. Ins. Co. v. M
Jewell, LLC, 992 N.E.2d 751, 758-59 (Ind. Ct. App. 2013) (holding that
“[w]hether a search of the auditor’s records would have produced an alternate
address and resulted in [the property owner] receiving actual notice . . . is not
the salient question; rather, the question is whether the auditor’s office
performed the duties imposed” by statute and constitution).
[2] Second, the Appellees are incorrect in stating that this Court “determined as a
matter of fact that the Certified Mail Notice was undeliverable rather than
refused[.]” Reh. Pet. p. 7. Instead, we plainly acknowledged a “conflict”
between the official Post Office label, which “indicate[d] that the mail was not
deliverable,” and the notation stating “refused” in handwriting. Slip op. p. 13.
We determined as a matter of law that given such a conflict, “the official Post
Office stamp and label must control.” Id. at 14. This holding does not conflict
with or otherwise override the trial court’s lone finding on this issue, which was
simply that “[t]he certified mail was returned to the Auditor and marked with a
Court of Appeals of Indiana | Opinion on Rehearing 18A-MI-2150 | October 8, 2019 Page 2 of 4
handwritten ‘Refused.’” Appealed Order p. 3. Therefore, this argument is
unpersuasive.
[3] Finally, the Appellees argue that we should vacate our opinion to permit the
Attorney General to intervene. We decline this invitation. Indiana Code
section 34-33.1-1-1(a) states:
If the constitutionality of a state statute, ordinance, or franchise
affecting the public interest is called into question in an action,
suit, or proceeding in any court to which an agency, officer, or
employee of the state is not a party, the court shall certify this fact to
the attorney general and shall permit the attorney general to
intervene on behalf of the state[.]
(Emphasis added). Here, the LaPorte County Auditor’s office, which is an
agency of the state, has been a party to the litigation at all times. E.g., Ind.
Code ch. 36-2-9 (creating and establishing parameters of the county auditor
position); I.C. § 36-2-9-10 (providing that county auditors may “sue principals
or sureties on any obligation” “in the name of the state”); State Bd. of Tax
Comm’rs v. S. Shore Marina, 422 N.E.2d 723, 735 (Ind. Ct. App. 1981) (laws
granting powers to county auditors “are intended to afford an instrumentality or
agency through which the State . . . can prevent property subject to taxation
from escaping the . . . law”). Therefore, the State’s position is adequately
represented and this statute related to Attorney General intervention does not
apply.
Court of Appeals of Indiana | Opinion on Rehearing 18A-MI-2150 | October 8, 2019 Page 3 of 4
[4] In all other respects, we deny the petition for rehearing.
May, J., and Tavitas, J., concur.
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