Booker T. Prince, Jr. v. Marion County Auditor and Marion County Treasurer , 2013 Ind. App. LEXIS 323 ( 2013 )

Jul 03 2013, 6:59 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
MARK SMALL ANGELA S. JOSEPH
Indianapolis, Indiana Office of Corporation Counsel
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BOOKER T. PRINCE, JR., )
)
Appellant-Respondent, )
)
vs. ) No. 49A02-1210-MI-835
)
MARION COUNTY AUDITOR and )
MARION COUNTY TREASURER, )
)
Appellees-Petitioners. )
APPEAL FROM THE MARION CIRCUIT COURT
The Honorable Louis Rosenberg, Judge
The Honorable Mark A. Jones, Master Commissioner
Cause No. 49C01-1009-MI-040603
July 3, 2013
OPINION - FOR PUBLICATION
SHARPNACK, Senior Judge
STATEMENT OF THE CASE
Booker T. Prince, Jr., appeals the trial court’s denial of his motion for relief from
judgment. We affirm.
ISSUES
Prince raises two issues, which we restate as:
I. Whether the trial court abused its discretion in determining that the
application for judgment and order for sale of Prince’s property of the
Marion County Auditor and Marion County Treasurer (collectively, “the
officials”) substantially complied with statutory requirements.
II. Whether the trial court abused its discretion in determining that the
officials’ notices to Prince regarding the tax sale process met the
requirements of due process.
FACTS AND PROCEDURAL HISTORY
In 2003, Prince purchased two adjoining parcels of land in Indianapolis. One
parcel has an apartment building and the other parcel is a parking lot. Prince hired a
building manager, who worked in an office in the building. Subsequently, Prince moved
to California and provided the Auditor with a California post office box for receipt of
correspondence. The Auditor also had the apartment building’s street address, but Prince
did not provide the unit or apartment number for the building’s office.
Prince failed to pay property taxes on the building and the parking lot. In August
2010, the Auditor sent a “Notice of Tax Sale” to Prince at the apartment building’s
address. Ex. Vol., Ex. A. The Auditor also sent copies of the notice to Prince at his
California post office box via first class mail and certified mail. The copy of the notice
that the Auditor sent to the apartment building came back marked “return to sender,
2
vacant, unable to forward.” Ex. Vol., Ex. C. Prince received the copy of the notice that
was sent to his California post office box by certified mail and signed for it. However,
the notice was stolen out of his car before he opened it. The notice that the Auditor sent
to Prince’s box via first class mail was not returned. The notice of tax sale advised that
Prince’s parcels would be sold at a tax sale on or after September 15, 2010, unless the
taxes were paid prior to that date. Prince did not pay the taxes due.
On September 15, 2010, the officials filed with the trial court an application for
judgment and order for sale, seeking permission to sell several parcels of land, including
the parcels at issue here. On October 4, 2010, the trial court issued a judgment and order
for the sale of Prince’s parcels. On October 8, 2010, the parcels were sold to Marion
County at a tax sale. After the tax sale, the Auditor hired a title company to perform a
title search on Prince’s parcels to uncover any additional addresses for Prince. No
additional addresses were found.
On January 3, 2011, the Auditor sent Prince a notice informing him that his
parcels had been sold at a tax sale and that he had a right to redeem them. The Auditor
sent a copy to the apartment building by first class mail and sent copies to Prince’s
California post office box by first class mail and certified mail. At that time, Prince had
begun using a different post office box. He did not inform the officials of his new
address, but he had arranged to have mail that arrived at his old post office box forwarded
to the new box. Once again, the copy of the notice that the Auditor sent to the apartment
building came back marked “return to sender, vacant, unable to forward.” Ex. Vol., Ex.
E. Furthermore, Prince did not claim the copy that was sent to his post office box via
3
certified mail. However, the copy that the Auditor sent to his post office box via first
class mail was not returned.
Next, in May 2011, the Auditor sent Prince a notice that a petition had been filed
with the trial court to issue a tax deed on or after June 10, 2011. Once again, the Auditor
sent a copy to the apartment building by first class mail and sent copies to Prince’s
California post office box by first class mail and certified mail. The copy of the notice
that the Auditor sent to the apartment building came back marked “return to sender,
vacant, unable to forward.” Ex. Vol., Ex. G. However, the copy that the Auditor sent to
Prince’s post office box via first class mail was not returned.
Subsequently, Prince received a call from the manager of his apartment building,
who told him that several individuals had arrived at the building and asserted that they
were the new owners.1 After receiving this information, Prince filed a motion for relief
from judgment, asking the court to set aside the judgment and order for sale. The court
held an evidentiary hearing. After the hearing, the trial court concluded as follows:
The Auditor’s efforts to notify Prince of the sale, redemption period and
issuance of the tax deed were constitutionally and statutorily sufficient.
The failure to include the dates of notice and publication in the Application
does not cause the Judgment And Order For Sale—and thus the sale
itself—to be void; there was substantial compliance with the statute, and
the Application did not mislead or otherwise prejudice Prince. Prince’s
Motion For Relief From Judgment is DENIED.
Appellant’s App. p. 15. This appeal followed.
1
The record does not reveal the identity of these individuals or whether Marion County had, in fact, sold
or otherwise transferred the parcels to them.
4
DISCUSSION AND DECISION
Motions for relief from judgment are governed by Indiana Trial Rule 60(B).
Prince cited Rule 60(B)(6) in his motion. That rule provides, in relevant part, “On
motion and upon such terms as are just the court may relieve a party or his legal
representatives from a judgment, including a judgment by default, for the following
reasons . . . the judgment is void.”
The decision of whether to grant or deny a Trial Rule 60(B) motion for relief from
judgment is within the sound, equitable discretion of the trial court. Stonger v. Sorrell,
776 N.E.2d 353, 358 (Ind. 2002). We will not reverse a denial of a motion for relief from
judgment in the absence of an abuse of discretion. Id. A trial court abuses its discretion
if its decision clearly contravenes the logic and effects of the facts and circumstances or if
the trial court has misinterpreted the law. Purcell v. Old Nat’l Bank, 972 N.E.2d 835, 843
(Ind. 2012).
In addition, where, as here, the trial court enters special findings and conclusions,
our standard of review is two-tiered. Stonger, 776 N.E.2d at 358. First, we determine
whether the evidence supports the findings, and second, whether the findings support the
judgment. Id. The findings and conclusions will be set aside only if they are clearly
erroneous. Id. The evidence is viewed in the light most favorable to the judgment, and
we will defer to the trial court’s factual findings if they are supported by the evidence and
any legitimate inferences therefrom. Marion Cnty. Auditor v. Sawmill Creek, LLC, 964
N.E.2d 213, 216-17 (Ind. 2012). Legal conclusions are reviewed de novo. Id.5
I. ADEQUACY OF APPLICATION FOR JUDGMENT AND ORDER FOR SALE
Prince argues that the trial court’s order authorizing the sale of his parcels was
void because the officials’ application failed to comply with statutory requirements.
When an owner of real estate fails to pay property taxes, the property may be
subject to sale in settlement of the delinquent taxes. Id. at 217. The tax sale process is a
purely statutory creation and requires material compliance with each step of the statutes,
Indiana Code sections 6-1.1-24-1 through -15 (sale) and 6-1.1-25-1 through -19
(redemption and tax deeds).2 Schaefer v. Kumar, 804 N.E.2d 184, 191 (Ind. Ct. App.
2004), trans. denied. 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. Id. However, this
presumption may be rebutted by affirmative evidence to the contrary. Id.As part of the tax sale process, the county treasurer and county auditor must file an
application for judgment and order for tax sale with a court and receive the court’s
permission to proceed with the tax sale. Ind. Code § 6-1.1-24-4.6 (2007). This statute
provides, in relevant part:
Application for judgment and order for sale shall be made as one (1) cause
of action to any court of competent jurisdiction jointly by the county
treasurer and county auditor. The application shall include the names of at
least one (1) of the owners of each tract or item of real property, the dates
of mailing of the notice required by sections 2 and 2.2 of this chapter, the
dates of publication required by section 3 of this chapter, and the affidavit
and corrected list as provided in subsection (a).
Ind. Code § 6-1.1-24-4.6(b).
2
Prince cites Marra v. Clapp, 255 Ind. 97, 262 N.E.2d 630 (1970), for the principle that a party following
a process set forth by statute must strictly comply with the terms of the statute. Marra addresses an
election contest, not a tax sale. We conclude that Schaefer and its antecedents, which directly address tax
sales and require material, rather than strict, compliance with statutory requirements, are applicable here.
6
Here, the officials filed an application for judgment and order for tax sale for with
the trial court on September 15, 2010. The officials concede the application lacked the
dates of mailing of the pre-sale notice and the dates of publication for the parcels at issue.
However, they argue that the application nonetheless materially complied with the
requirements of the statute.
Prince claims the affidavit the officials attached to their application is defective
because it lacks a notarial seal.3 As a general rule, all notarial acts must be attested by a
seal. Ind. Code § 33-42-2-4 (2004). Our Supreme Court, however, does not require strict
compliance with this requirement. See Brown v. N. Ind. Land Co., 185 Ind. 520, 112
N.E. 525, 527 (1916) (reversing the trial court’s decision to dismiss a case due to an
affidavit’s lack of a notarial seal and holding that the appellant had substantially
complied with the requirements for an affidavit).
In this case, the officials provided Prince with notice of the sale, as they asserted
in their affidavit. Prince does not dispute signing for the certified copy of the notice that
they sent to his California post office box.4 Furthermore, Prince does not dispute that he
3
Prince further notes that the record contains two versions of the affidavit, both of which bear a
September 15, 2010 file-mark. The version that is attached to the trial court’s ruling on Prince’s motion
for relief from judgment contains the notary public’s signature, the date of execution, the county, and the
date the notary’s commission expired. The version Prince attached to his motion for relief from judgment
lacks the date of execution and the date the notary’s commission expires. Prince fails to explain why
there are two versions of the affidavit. We shall consider the more complete version of the affidavit to be
valid in the absence of evidence or argument to the contrary, and the sole defect in that version is the
absence of a notarial seal.
4
Prince argues for the first time in his reply brief that the officials could not have known at the time they
filed the application that they had provided Prince with proper notice because the certified mail receipt
did not come back until after the officials had filed the application. We disagree. The Auditor had sent
copies of the notice of tax sale to Prince’s California post office box by first class mail and certified mail,
7
owed property taxes on the parcel, as stated in the officials’ affidavit. Prince also fails to
explain how he was prejudiced by any defects in the application, because the officials
were not required to send him a copy and he did not see it until after he had been
informed that the parcels had been sold. In addition, the application stated Prince’s
name, identified the parcels at issue, and stated the amount of property taxes due. While
it would have been better for the court to require the officials to provide all of the
information set forth in Indiana Code section 6-1.1-24-4.6(b), there is sufficient evidence
to support the trial court’s findings and conclusions that the application substantially
complied with the statutory requirements. The trial court did not abuse its discretion.
II. NOTICE TO PRINCE
Prince claims that the officials failed to provide him with adequate notice of the
sale of his properties, thereby depriving him of due process of law. Before the
government may sell property due to unpaid property taxes, the Due Process Clause of
the Fourteenth Amendment to the United States Constitution requires the government to
provide the owner with “notice and opportunity for hearing appropriate to the nature of
the case.” Sawmill Creek, 964 N.E.2d at 217 (quoting Jones v. Flowers, 547 U.S. 220,
223, 126 S. Ct. 1708, 164 L. Ed. 2d 415 (2006)). Due process does not require that a
property owner receive actual notice before the government may take his property.
Jones, 547 U.S. at 226. Rather, the government must provide notice reasonably
and the copy they sent first class was not returned. Thus, the officials had reason to state that they had
sent Prince notice of the sale.
8
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.In Indiana, title conveyed by a tax deed may be defeated if three required notices,
specifically the notice of tax sale, the notice of the right of redemption, and the notice of
petition for tax deed, are not in substantial compliance with statutory requirements.
Schaefer, 804 N.E.2d at 191. The notice of tax sale is governed by Indiana Code section
6-1.1-24-4 (2007), which requires the county auditor to send notice of the tax sale by
certified mail to the owner or owners of the real property at their last known address.
Next, Indiana Code section 6-1.1-25-4.5 (2007) governs notices of the right of
redemption. According to that statute, a person who purchases property at a tax sale must
send the owner of the property a notice of the sale and of the right of redemption via
certified mail at the last address for the owner as indicated in the county auditor’s
records. Id.Finally, if the owner of record does not redeem the property from the tax sale
within the required period, the purchaser may petition the trial court for issuance of a tax
deed. Ind. Code § 6-1.1-25-4.6 (2007). The purchaser must provide notice of the
petition to the owner of record in the same manner set forth in Indiana Code section 6-
1.1-25-4.5. Ind. Code § 6-1.1-25-4.6.
Here, the Auditor sent Prince the notice of the tax sale, the notice of the right of
redemption, and the notice of petition for tax deed in three different ways: (1) to the
apartment building, (2) to Prince’s California post office box via certified mail, and (3) to
Prince’s California post office box via first class mail. Furthermore, after the tax sale the
9
Auditor obtained a title search on Prince’s parcels in an unsuccessful effort to locate
additional addresses. All of the notices sent to the apartment building were returned to
the Auditor indicating that the property was vacant. However, Prince received the notice
of tax sale that was sent to his post office box via certified mail. Furthermore, none of
the notices that the Auditor sent to Prince’s post office box via first class mail were
returned to the Auditor. Thus, the Auditor substantially complied with the statutes that
govern the notices, and the manner of service the Auditor chose was reasonably
calculated, under all the circumstances, to apprise Prince of the pendency of the action
and afford him an opportunity to object. See Sawmill Creek, 964 N.E.2d at 220
(determining that the county auditor’s manner of service satisfied due process
requirements, despite the property owner’s failure to receive actual notice, because the
Auditor published notices in multiple ways, mailed notices to all addresses of which it
was aware, and obtained a title search in an attempt to find additional addresses for the
owner).
Prince argues that the officials should have posted the notices at the apartment
building, where his manager would have seen it. We cannot conclude that principles of
due process required the officials to post the notice. All of the notices the Auditor had
sent to the apartment building had come back indicating that the property was vacant. It
would not be reasonable to require the Auditor to post notice at what was, to the best of
the Auditor’s knowledge, vacant property. See id. at 221 (determining that the Auditor
was not required to post notice at the property because the Auditor’s records indicated the
property was empty land).
10
Next, Prince argues that the holding in Jones requires us to reverse, but that case is
factually distinguishable. In Jones, the government agency seeking to sell Jones’s
property for unpaid taxes sent one notice of the tax sale to Jones, via certified mail. The
certified mail was unclaimed, and the agency proceeded with the tax sale. The United
States Supreme Court concluded that, under the circumstances, the agency’s attempts to
provide notice to Jones did not comply with principles of due process, particularly
because the agency took no further steps after learning that the only notice that it sent had
failed to reach the owner. Jones, 547 U.S. at 238.
In the current case, none of the notices that the Auditor sent to Prince’s post office
box via first class mail were returned. Furthermore, Prince had signed the certified mail
receipt for the notice of tax sale, which was also sent to the post office box. Thus, the
Auditor knew that service had been accomplished. Furthermore, after the tax sale the
Auditor obtained a title search to locate other addresses for Prince. Consequently, the
officials acted with far more diligence than the agency in Jones, and that case does not
compel reversal here. The trial court did not abuse its discretion in concluding that the
officials’ notices to Prince regarding the tax sale process met the requirements of due
process.
CONCLUSION
For the reasons stated above, we affirm the judgment of the trial court.
Affirmed.
BAKER, J., and MAY, J., concur.
11