219 Kenwood Holdings, LLC v. Properties 2006, LLC

Oct 24 2014, 10:00 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ROBERT D. LONCAR PATRICK A. SCHUSTER
Loncar Law, Ltd. Patrick A. Schuster & Associates
Chicago, Illinois Crown Point, Indiana
DAVID E. BRAATZ
Crown Point, Indiana
IN THE
COURT OF APPEALS OF INDIANA
219 KENWOOD HOLDINGS, LLC, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1401-MI-49
)
PROPERTIES 2006, LLC, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE CIRCUIT COURT
The Honorable George C. Paras, Judge
The Honorable Robert G. Vann, Magistrate
Cause No. 45C01-1207-MI-118
October 24, 2014
OPINION–FOR PUBLICATION
BAKER, Judge
219 Kenwood Holdings, LLC, (Kenwood) appeals the judgment of the trial court
finding that Properties 2006, LLC, (Properties 2006) substantially complied with the
requirements of Indiana Code section 6-1.1-25-4.5(e). Subsection (e) requires that the
purchaser of property sold at a tax sale notify the owner of record of, among other things,
the purchaser’s intent to petition for a tax deed on or after a specified date. Finding that
the trial court did not err in its determination that Properties 2006 substantially complied
with the requirements of this statute, we affirm.
FACTS
Kenwood was the owner of record of property located at 219 Kenwood Avenue in
Hammond (the Property) on April 25, 2013. On that date, the Property was sold in a tax
sale to Unexpected Holdings, LLC, as a result of Kenwood’s delinquency in its payment
of taxes. Unexpected Holdings, LLC, received a certificate of sale and assigned its rights
under this certificate to Properties 2006.
On June 21, 2013, Properties 2006 sent Kenwood notice of its purchase and its
intent to petition for a tax deed as required by Indiana Code section 6-1.1-25-4.5. The
notice contained the statement: “A petition for a tax deed will be filed on or after August
24, 2013.” Appellee’s Br. p. 1. Kenwood contacted several potential lenders in an
attempt to secure a loan to redeem the Property but was eventually unsuccessful. On
August 30, 2013, Properties 2006 notified Kenwood that it had petitioned for a tax deed
as required by Indiana Code section 6-1.1-25-4.6.
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On September 25, 2013, Kenwood filed a Verified Objection to Petition for Tax
Deed in the trial court, arguing that the first notice sent by Properties 2006 did not meet
the requirements of Indiana Code section 6-1.1-25-4.5(e). The trial court held a bench
trial on December 9, 2013, and found that Properties 2006 had substantially complied
with the statute. Kenwood now appeals.
DISCUSSION AND DECISION
In determining whether the trial court was correct in finding that Properties 2006
substantially complied with Indiana Code section 6-1.1-25-4.5(e), we are required to
interpret the language of the statute. The interpretation of a statute is a question of law
and we review the trial court’s conclusion under a de novo standard. In re 2002 Lake
Cnty. Tax Sale, 818 N.E.2d 505, 507 (Ind. Ct. App. 2004).
Our Supreme Court has noted that “[t]he first and often the only step in resolving
an issue of statutory interpretation is the language of the statute.” Shell Oil Co. v. Meyer,
705 N.E.2d 962, 972 (Ind. 1998). “The goal of statutory construction is to determine,
give effect to, and implement the intent of the legislature.” N.D.F. v. State, 775 N.E.2d
1085, 1088 (Ind. 2002). The language of the statute is the best evidence of legislative
intent, and all words must be given their plain and ordinary meaning. Erkins v. State, 13
N.E.3d 400, 407 (Ind. 2014). Consequently, “[i]f the language of the statute is clear and
unambiguous, it is not subject to judicial interpretation.” Hill v. State, 15 N.E.3d 589,
591 (Ind. Ct. App. 2014).
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Our Supreme Court has explained the statutory framework for a tax sale as
follows:
A purchaser of Indiana real property that is sold for delinquent taxes
initially receives a certificate of sale. A [] redemption period ensues. If the
owners fail to redeem the property during that [period], a purchaser who
has complied with the statutory requirements is entitled to a tax deed. The
property owner . . . must [] 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 petition will be
filed. The second notice announces that the purchaser has petitioned for a
tax deed.
Tax Certificate Invs., Inc. v. Smethers, 714 N.E.2d 131, 133 (Ind. 1999) (citations
omitted).
Here, Kenwood does not take issue with the second notice. Instead, Kenwood
argues that the first notice did not meet the statutory requirements outlined in Indiana
Code section 6-1.1-25-4.5(e), which provides in relevant part:
The notice that this section requires shall contain at least the following:
(1) A statement that a petition for a tax deed will be filed on or after
a specified date.
(2) The date on or after which the petitioner intends to petition for a
tax deed to be issued. . . .
The statute goes on to list a total of fifteen elements that must be included in the notice
sent by the purchaser to the property owner.
The notice sent by Properties 2006 to Kenwood included the following statement:
“A petition for a tax deed will be filed on or after August 24, 2013.” Appellant’s Br. p. 5.
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Kenwood argues that, while this statement complies with subdivision (1), it fails to
comply with subdivision (2). Appellant’s Br. p. 7.
In this case, the language of the statute is clear and unambiguous. Subdivision (2)
provides that the petitioner must notify the owner of record of “[t]he date on or after
which the petitioner intends to petition for a tax deed to be issued.” I.C. § 6-1.1-25-
4.5(e)(2). Kenwood argues that Properties 2006’s statement—“A petition for a tax deed
will be filed on or after August 24, 2013.”—does not satisfy subdivision (2) because it is
“devoid of any statement as to the date on or after which the petitioner intends for a tax
deed to be issued[.]” Appellant’s Br. p. 7. Kenwood’s interpretation seems to require a
petitioner to predict the date on which the court would actually issue a tax deed and
inform the owner of that date.
However, Kenwood’s interpretation is only possible if the words “to petition” are
omitted from the statute. Through this omission, Kenwood turns
“[t]he date on or after which the petitioner intends to petition for a tax deed
to be issued,”
I.C. § 6-1.1-25-4.5(e)(2) (emphasis added), into
“the date on or after which the petitioner intends [ . . . ] for a tax deed to be
issued[.]”
Appellant’s Br. p. 7.
When the statute is read in its original form, it is clear that subdivision (2) does not
require the petitioner to predict when the court will actually issue the tax deed. Instead,
the statute requires the petitioner to inform the owner of record of “[t]he date on or after
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which the petitioner intends to petition for a tax deed to be issued.” I.C. § 6-1.1-25-
4.5(e)(2) (emphasis added). It is the date of petitioning that the statute is concerned with,
not the date of issuance.1 Properties 2006’s statement informed Kenwood of the date on
which it planned to petition for a tax deed. The statement makes clear that Properties
2006 intended to file this petition on August 24, 2013. Therefore, Properties 2006 fully
complied with subsection (e).
Kenwood also appears to argue that the requirements of subdivisions (1) and (2)
cannot be satisfied by one statement alone. Under this rationale, Properties 2006’s
statement—“A petition for a tax deed will be filed on or after August 24, 2013.”—is
insufficient to satisfy both subdivisions as is, but becomes sufficient if broken into—“A
petition for a tax deed will be filed. This petition will be filed on August 24, 2013.”
We find Kenwood’s interpretation untenable. Subsection (e) does not impose a
requirement that each element be contained within a separate statement or sentence, and
we will not read such a requirement into it. Ind. Dept. of State Revenue v. Horizon
Bancorp, 644 N.E.2d 870, 872 (Ind. 1994) (“[n]othing may be read into a statute which is
not within the manifest intention of the legislature as gathered from the statute itself”).
The subsection simply requires that the notice “shall contain at least the following . . . ,”
and then goes on to list fifteen elements. I.C. § 6-1.1-25-4.5(e). While the second
1
In this case, Properties 2006 petitioned for a tax deed on August 24, 2013—which it had informed
Kenwood that it would do. Kenwood then objected, and it was not until December 16, 2013, that the trial
court issued its findings of fact and conclusions of law, ordering the tax deed to be issued to Properties
2006. Kenwood believes that the statute required Properties 2006 to have predicted that the tax deed
would be issued on December 16, 2013—an impossible task.
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requirement is arguably redundant, we believe the legislature intended to emphasize the
importance of including the specific date on which the purchaser intends to petition.
Properties 2006’s notice made clear that August 24, 2013, was that date.
We also note that the purpose of the statute was achieved in this case. Kenwood
was given notice that Properties 2006 intended to petition for a tax deed and that
Kenwood had a right of redemption. Kenwood then attempted to secure a loan from
several financial institutions but was ultimately unsuccessful. The notice given provided
Kenwood with an opportunity to obtain a loan in order to redeem its property.
Kenwood’s failure to redeem the Property was not the result of any discrepancy in the
notice, but rather, the result of its failure to obtain a loan. Under these circumstances, we
find no error.
The judgment of the trial court is affirmed.
KIRSCH, J., and ROBB, J., concur.
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