Property Appeals

By Steven M. Badger

Whether a law suit involves a zoning dispute, property appeal or business litigation question, the Indiana law firm handling the matter must be familiar with the unique procedural aspects of Indiana law.  Two decisions issued this week by the Indiana Appellate Courts focus on questions of Indiana procedure when a property owner initiates a court challenge to a decision by a local Board of Zoning Appeals.
 
In Thomas v. Blackford County Area Board of Zoning Appeals and Oolman Dairy, LLC, the Indiana Supreme Court affirmed the trial court's conclusion that Thomas, a property owner who remonstrated against locating a confined animal feeding operation one-third of a mile from Remonstrator Thomas' property, failed to show she had standing to challenge a Board of Zoning Appeals' ("BZA's") decision granting a special exception for the feeding operation. 
 
The standing question itself and the Indiana Supreme Court's affirmance of the trial court's findings are neither novel nor surprising to an Indiana appellate lawyer.  The interesting aspect of the decision is the Supreme Court's approval of the procedure followed by the trial court to reach the result.
 
The question of Thomas' standing was first raised by the owner of the feed operation in a motion to dismiss under Indiana Trial Rule 12(B)(6).   The trial court correctly denied that motion because it was based on matters outside the four corners of the Complaint.  The trial court, nevertheless, held an evidentiary hearing on the question of whether Thomas had standing as an aggrieved party.  Based on the testimony and evidence at the hearing (principally relating to the impact of the feeding operation on the value of Thomas' property), the trial court determined that Thomas failed to establish she had standing to challenge the BZA's decision.

The decision was first reviewed by the Indiana Court of Appeals, which reversed the trial court's decision.  The Court of Appeals reasoned that the trial court should have treated the Motion to Dismiss as a Motion for Summary Judgment.  See Ind. Trial Rule 12(B) (when "matters outside the pleading are presented to and not excluded by the court" on a motion under Rule 12(B)(6), "the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.").  That procedural determination by the Court of Appeals was outcome determinative because the evidence as to Thomas' standing (i.e., the impact the feeding operation would have on her property's value) was conflicting, thereby creating genuine issues of material fact.

The Indiana Supreme Court granted transfer, vacated the Indiana Court of Appeals decision, and affirmed the trial court's decision finding Thomas lacked standing.  The Indiana Supreme Court agreed with the trial court and Court of Appeals that dismissal was not appropriate under Indiana Trial Rule 12(B)(6).  However, departing from the Court of Appeals' analysis, the Supreme Court concluded that the procedure for summary judgment under Trial Rule 56 did not apply.  Instead, the Supreme Court compared the situation to a motion to dismiss for lack of personal jurisdiction in which a trial court may hold an evidentiary hearing to determine the jurisdictional question.  Thus, the Supreme Court approved of the procedure followed by the trial court in holding an evidentiary hearing and deciding whether the Plaintiff had standing based on the conflicting evidence presented.
 
There is no specific provision in Trial Rule 12(B) that the Indiana Supreme Court relied upon in holding that the trial court may determine the Plaintiff's standing on a motion to dismiss.  Implicit in that result is the notion that standing is a legal issue for the judge, not the jury, to decide.
 
A novel procedural issue was also addressed in Edward Rose of Indiana, LLC v. Metropolitan Board of Zoning Appeals, Indianapolis-Marion County.  In Edward Rose, an apartment owner challenged the Indianapolis-Marion County BZA's denial of a variance sought by the apartment owner to maintain a pole sign on the premises of the apartment complex.  Like Thomas, the decision is noteworthy for the Indiana property law attorney not because of the Court's conclusion that the variance was properly denied to the apartment owner, but rather for the Court of Appeals' dictum regarding the procedure followed by the trial court.
 
Specifically, the Indiana Court of Appeals addressed under what circumstances a landowner who had unsuccessfully petitioned for a variance in the local BZA may challenge that decision based on evidence the landowner failed to offer in the zoning hearing.  The issue hinged on an Indiana statute that provides in relevant part:  "If the court determines that testimony is necessary for the proper disposition of the matter, it may take evidence to supplement the evidence and facts disclosed by the return to the writ of certiorari, but the review may not be by trial de novo."  Indiana Code section 36-7-4-1009.  The apartment owner sought to buttress its case in court with testimony and evidence that had not been submitted to the BZA.  The trial court admitted that testimony and evidence, but ruled nevertheless that the BZA's decision was not clearly erroneous or illegal.
 
Although the Indiana Court of Appeals affirmed the trial court's decision on the merits finding no clear error in the BZA's decision, the Court disagreed with the trial court's decision to hear new evidence offered by the apartment owner.  The Indiana Court of Appeals reasoned that allowing the apartment owner to present new evidence was "tantamount to conducting a trial de novo" -- in essence relitigating the merits of the variance petition from scratch.  Such an approach would directly violate Indiana Code section 36-7-4-1009's proscription that the trial court's review of BZA decisions "may not be a trial de novo."
 
The Indiana Court of Appeals elaborated to provide guidance in future cases by listing circumstances when it may be appropriate for a trial court reviewing a BZA decision to consider new evidence.  Such situations arise, for example:
 

1) when the record before the BZA is incomplete because the aggrieved party was refused an opportunity to be fully heard or the BZA excluded relevant evidence;

 2) when good and sufficient cause is shown for the failure to have offered the evidence to the BZA;

 3) when the record presented to the trial court does not contain all the evidence actually presented to the BZA;

 4) when the BZA’s record fails to present the hearing in sufficient scope to determine the merits of the appeal; and 

 5) when new evidence is discovered after the BZA’s proceedings.

An Indiana litigation law firm's understanding of Indiana procedure can be as important as knowledge of the substantive law in obtaining a positive outcome in Indiana litigation matters.  The Indiana appellate decisions summarized above guide Indiana lawyers on important procedural questions in Indiana property appeals.

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Deutsche Bank National Trust Company appeals summary judgment for Mark Dill Plumbing Company, Mark E. Neff, and Invironmental Technologies, LLC. (collectively, "Appellees"). Deutsche Bank owned a mortgage on Welch's property. Deutsche Bank filed a mortgage foreclosure action against Welch, but did not join any of the Appellees as parties. The foreclosure proceeded to judgment and Deutsche Bank purchased Welch's real estate at a Sheriff's sale. Thereafter, Deutsche Bank learned of the judgment liens belonging to Appellees, and filed an action to remove their liens. Appellees individually answered, and Neff and Invironmental counterclaimed to foreclose their liens. Deutsche Bank then filed a motion for summary judgment, claiming the Appellees' liens were subordinate to Deutsche Bank's interest and claiming Appellees' rights and equity should be cut off. Neff filed a cross-motion for summary judgment, which Dill Plumbing and Invironmental joined, that requested Deutsche Bank's equity of redemption be foreclosed and another Sheriff's sale be held to satisfy the amounts owed to Appellees. After a hearing, the court denied Deutsche Bank's motion and granted Appellees' motion.

Conclusion (slip op. at 8): We affirm the summary judgment for Dill Plumbing, Neff, and Invironmental.

Key Analysis (slip op. at 6, 8): When junior lienholders are not made parties, the foreclosure and sale cannot be enforced against them . . . Deutsche Bank foreclosed its mortgage without making Appellees parties. Deutsche Bank acknowledges Appellees' liens were properly recorded; its agent that conducted the title search presumably missed them. Accordingly, Deutsche Bank should have known about Appellees' liens. The trial court ordered the property sold to satisfy the liens belonging to Appellees and . . . the trial court reached the proper result.

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FISHER, J.

Kooshtard Property VIII, LLC (Kooshtard) challenges the final determination of the Indiana Board of Tax Review (Indiana Board) affirming the 2002 assessment of its real property. Kooshtard presents one issue on appeal, which the Court restates as: whether the Indiana Board erred in affirming the application of only one negative influence factor of 50% to Kooshtard’s land.

Conclusion (slip op. at 7): The Indiana Board’s final determination is affirmed.

Key Analysis (slip op. at 6-7): Kooshtard has done nothing more than assert that the applicable neighborhood valuation form "recommends" a negative influence factor to account for its land’s size and shape. Kooshtard, however, was required to present a calculation which quantified (and would have possibly supported) the alleged loss in value to its property due to that condition. Consequently, the Indiana Board did not err when it held that Kooshtard did not make a prima facie case that it was entitled to a second negative influence factor of 50% to account for its land’s size and shape.

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Gloria Murray et al. ("the Plaintiffs") brought suit against the City of Lawrence ("the City"), the Lawrenceburg Conservancy District ("the Conservancy District"), and Indiana Gaming Company, L.P. ("Indiana Gaming") (collectively "the Defendants"), claiming ownership of a certain portion of land being used by the Defendants. The Defendants filed a motion for a judgment on the pleadings, which the trial court denied. The trial court then denied the Plaintiffs' demand for a jury trial. The Plaintiffs now bring this interlocutory appeal and claim that the trial court erred in denying their demand for a jury trial. The Defendants cross-appeal and claim that the trial court erred in denying their motion for judgment on the pleadings.

Conclusion (slip op. at 24): The Defendants' cross-appeal is properly before us, as our earlier decision to decline to accept interlocutory jurisdiction is not final, and we now, under these limited facts and circumstances, choose to reconsider our earlier decision to decline jurisdiction over the Defendants' appeal from the trial court's certified interlocutory order. Considering the merits of the Defendants' cross-appeal, we conclude that the Plaintiffs' were not required to bring a claim for inverse condemnation, because inverse condemnation is not an exclusive remedy and because ownership of the Disputed Property has not yet been determined . . . Lastly, the essential features of the Plaintiffs lawsuit were not equitable, and the entire case is therefore not drawn into equity. On remand, the trial court should resolve the timeliness of the Plaintiffs' claims; sever the timely-filed distinct, legal claims; and grant the Plaintiffs' demand for a jury trial as to these claims.

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Bay Bridge LLC ("Bay Bridge") filed a complaint in Lake Superior Court to quiet title to a parcel of real estate commonly known as 149th and Colfax, Cedar Lake, Indiana ("the real estate") and named Atul Kumar ("Kumar") as a defendant. Kumar had purchased the real estate at a tax sale but failed to record his deed. The trial court granted Bay Bridge’s motion for summary judgment. Kumar appeals and raises several issues. However, we address only the following dispositive issue: whether Bay Bridge was a bona fide purchaser of the real estate at issue.

Conclusion (slip op. at 7): The trial court properly granted Bay Bridge’s motion for summary judgment on its complaint to quiet title. Affirmed.

Key Analysis (slip op. at 6, 7): Kumar failed to record his tax deed as required by Indiana Code section 32-21-4-1, and it remained unrecorded until after Bay Bridge filed its complaint to quiet title. Therefore, Bay Bridge did not have constructive notice of Kumar’s interest in the real estate at issue . . . With regard to actual notice, prior to purchasing the property, Bay Bridge requested a title search, which found of record no lis pendens, no certificate of tax sale, no tax deed, nor any other record interest of Atul Kumar in the property purchased by Bay Bridge. Moreover, Kumar did not designate any evidence to the trial court which would establish that Bay Bridge had actual notice of his claimed interest in the property.

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Donald L. Shaum and Nancy V. Shaum appeal the trial court’s grant of summary judgment to Progressive Engineering, Inc., and Dennis Gobble. The Shaums raise seven issues, which we consolidate and restate as whether the trial court erred by granting summary judgment and determining that the Shaums’ claim against Progressive and Gobble was filed outside of the statute of limitations.

Conclusion (slip op. at 8): We affirm the trial court’s grant of summary judgment to Progressive Engineering and Gobble.

Key Analysis (slip op. at 6, 7): For an action to accrue, it is not necessary that the full extent of the damage be known or even ascertainable, but only that some ascertainable damage has occurred . . . We hold that the two-year statute of limitations applies here as this is a claim for professional malpractice. Further, even if the six-year statute of limitations of Ind. Code § 34-11-2-7 applied, we conclude that the Shaums’ action against Progressive Engineering and Gobble was untimely . . . The Shaums should have known of the land dispute and discovered the survey error in 1997 when McClure constructed his residence on the disputed property.

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Appellants-Defendants, Bledsoe's, Inc. (Bledsoe's) and John Cress d/b/a West Otter Lake Estates (Cress), appeal the trial court's grant of summary judgment to Appellee-Plaintiff, Steuben Lakes Regional Waste District (the District). Cress raises two issues, the first of which Bledsoe's joins, which we restate as:

(1) Whether Ordinance No. 2002-03 is unconstitutionally vague for failing to define the terms "mobile home park" and "trailer park"; and

(2) Whether Cress should be required to pay sewage fees for the period prior to which his property was connected to the sewage system.

Conclusion (slip op. at 14):  We conclude that the ordinances are not unconstitutionally vague. Further, we conclude that the trial court erred by granting summary judgment to the District on its claim that it had properly billed Cress prior to his property's connection to the sewage system. Affirmed in part, reversed in part, and remanded for further proceedings.

Key Analysis (slip op. at 9, 13-14):  We conclude that the ordinances are sufficiently specific to provide fair warning to users such as Bledsoe's and Cress. If customers such as Bledsoe's and Cress wish to be treated as a campground and billed as a commercial property, their option is clear: reduce the amount of annual accommodations on their real property attributable to mobile homes . . . A substantial portion of the monthly fees billed to Cress were likely attributable to paying for the debt incurred by the District for the installation of the sewage system. Billing customers for such an expense prior to connection would fall within the District's discretion.

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Boehm, Justice.

In State v. Ensley, this Court held that roadway improvements that reduce or interfere with traffic flow to a commercial property do not constitute takings of a property right of the owner of the property. We reaffirm Ensley and hold that the shopping center owners are not entitled to consequential damages from street reconfigurations that affect traffic flow through the center and prevent expansion of existing points of ingress or egress, but leave existing points in place.

Conclusion (slip op. at 12):  Given the record testimony assessing the compensable takings at no more than $100,700, the $2,300,000 verdict is excessive as a matter of law. The judgment of the trial court is reversed and the cause remanded for proceedings consistent with this opinion.

Key Analysis (slip op. at 10, 11, 12):  The only substantive allegation is that traffic flow to the shopping complex has been encumbered. Under Ensley and its progeny, these consequences from the State's roadway improvements are not compensable because no property right has been taken . . . It is well settled that a property owner is not entitled to unlimited access to abutting property at all points along the highway . . . As a matter of law, under Ensley, the redirected traffic flow is not a deprivation of a property right.

Shepard, C.J., and Sullivan, J., concur. Dickson and Rucker, JJ., dissent, believing that the Court of Appeals correctly decided this case.

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Todd S. and Dawn E. Coombes (the Petitioners) challenge the final determination of the Indiana Board of Tax Review (Indiana Board) valuing their real property as of the March 1, 2003 assessment date. The Petitioners present one issue on appeal, which the Court restates as:  Whether the Indiana Board erred when it failed to value the Petitioners' land at $42,000.

Conclusion (slip op. at 7):  The Indiana Board's final determination is affirmed.

Key Analysis (slip op. at 7):  The 2002 neighborhood valuation form, as duly-promulgated, actually contained a "catch-all" provision under which Bridgewater generally – and the Petitioners' lot specifically – could be assessed in 2003 . . . As the Indiana Board properly concluded, there was no need for local assessing officials to amend the applicable 2002 neighborhood valuation form. As a result, the Petitioners' procedural due process rights have not been violated.

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Indiana Insurance Co. ("Indiana") filed the underlying declaratory judgment action requesting that the trial court determine whether the insurance policy it sold to T.R. Bulger, Inc. ("Bulger") covers losses sustained by a homeowner as a result of Bulger's faulty installation of a heating, ventilation, and air conditioning ("HVAC") system. The trial court granted summary judgment in favor of Indiana and Bulger appealed. For our review, Bulger raises three issues, which we consolidate and restate as: whether the trial court erred when it granted summary judgment in favor of Indiana.

Conclusion (slip op. at 11-12):  There is no genuine issue of material fact that Cipares acted as Bulger's agent until Bulger signed the insurance policy. Therefore, the trial court did not err in granting summary judgment in favor of Indiana on this issue. However, there are genuine issues of material fact regarding whether Bulger's faulty workmanship caused property damage to the rest of the Mussmans' house, whether such damage comprised a portion of the arbitration award, and whether such damages are covered by the products-completed operations hazard policy. Therefore, the trial court erred in granting summary judgment in favor of Indiana on this issue. Affirmed in part, reversed in part, and remanded for further proceedings in light of this opinion.

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Appellant-Defendant Thomas Grabowski ("Thomas") appeals the trial court's denial of his motion to set aside a default judgment entered in favor of Appellees-Plaintiffs Brian Waters and Richard Klare (collectively, "Plaintiffs") in their action to quiet title to certain real estate previously owned by Thomas's parents, Frank and Jane Grabowski ("the Grabowskis"). Upon appeal, Thomas claims that the default judgment is void for lack of personal jurisdiction due to improper service of process.

Conclusion (slip op. at 12):  The judgment of the trial court is affirmed.

Key Analysis (slip op. at 12):  Because the instant case involved tax-sale property previously owned by now-deceased persons lacking an estate or named representative, and given the Plaintiffs' efforts to serve these persons and their unnamed heirs and successors in interest both at their last known address and by publication in the county where the property at issue is located, we agree with the trial court that such notice was reasonably calculated to apprise the persons and their unnamed successors in interest, including Thomas, of the instant action. This is so especially in light of the fact that the record lacks evidence demonstrating how a more diligent search would have revealed the identities or locations of interested parties.

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UNPUBLISHED

Appellants-Defendants, Randyl A. McCauley (Randyl) and Deanna R. McCauley (Deanna) (collectively, the McCauleys), appeal the trial court's order permanently enjoining them from entering onto an easement over the property of Appellee-Plaintiff, Dale W. DuKate (DuKate), and requiring them to remove a water line and meter from DuKate's property. DuKate cross-appeals the trial court's judgment in favor of the McCauleys on his claim for trespass.

Conclusion (slip op. at 12):  We conclude that the trial court erred in permanently enjoining the McCauleys from entering onto the easement described in the quitclaim deed and by ordering them to remove the water line and meter from DuKate's property. We remand this cause to the trial court with instructions to amend its order accordingly. However, we affirm the trial court's judgment in favor of the McCauleys on DuKate's claim of trespass.

Key Analysis (slip op. at 7, 9-10): Reviewing the survey in conjunction with the deed, only one reasonable conclusion can be reached: DuKate intended to grant the easement to the McCauleys so that they can reach the county road. Therefore, the trial court erred in permanently enjoining the McCauleys from entering onto the easement . . . Evidence tends to prove that the McCauleys had DuKate's permission to install the water line and meter on DuKate's property. This conclusion disposes of DuKate's argument that the trial court properly ordered the McCauleys to remove the water line and meter.

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Robert V. Rohrman (Rohrman) appeals the final determination of the Indiana Board of Tax Review (Indiana Board) valuing his real property as of the March 1, 2004 and 2005 assessment dates. The matter is currently before the Court on the Tippecanoe County Assessor’s (the Assessor) motion to dismiss. The Assessor seeks to have Rohrman’s appeal dismissed on the basis that Rohrman had 45 days from the date of the Indiana Board’s final determination to file an original tax appeal which named her as the respondent and to effect service of process upon her. The Assessor maintains that because Rohrman did not name her as a respondent and serve her until December 12, 2008, when he filed his amended petition – which was 53 days after the Indiana Board’s final determination – Rohrman should not be permitted to amend his Petition and this matter should be dismissed.

Conclusion (slip op. at 5):  The Assessor’s motion to dismiss is denied. The case shall therefore proceed on its merits, with briefing due in accordance with this Court’s order of January 30, 2009.

Key Analysis (slip op. at 3):  Rohrman’s failure to name the Assessor in his December 1, 2008 petition is not the type of error that implicates this Court’s subject matter jurisdiction. Rather, it is the type of procedural error that may prevent this Court from exercising its jurisdiction . . . While the general rule requires that a new defendant to a claim be added prior to the running of the statute of limitations, Trial Rule 15(C) provides an exception.

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The Lake County Assessor, the Calumet Township Assessor, and the Lake County Property Tax Assessment Board of Appeals (PTABOA) (collectively, Lake County) appeal the final determination of the Indiana Board of Tax Review (Indiana Board) valuing United States Steel Corporation's (US Steel) real property as of the March 1, 2001 assessment date.

On appeal, Lake County presents several issues for the Court to decide. The Court restates those issues as:

I. Whether the Indiana Board erred when it admitted US Steel's Excess Cost Report under Calculation #1-B because it was not "scientifically reliable";
II. Whether the Indiana Board erred when it failed to discount US Steel's total functional obsolescence award by $23,112, 230;
III. Whether the Indiana Board erred when it failed to find that Calculation #2 was invalid because it utilized bankruptcy sales in its sales comparison approach;
IV. Whether the Indiana Board erred when it held that US Steel was entitled to an obsolescence adjustment at all, given the result of Calculation #1-C; and
V. Whether the Indiana Board erred in reducing the assessed value of US Steel's land.

Conclusion (slip op. at 18):  The Indiana Board's final determination with respect to Issues I, III, and IV are affirmed. The Indiana Board's final determination with respect to Issues II and V, however, are reversed. The matter is remanded to the Indiana Board to make adjustments to US Steel's 2001 real property assessment consistent with this opinion. 
 
Key Analysis (slip op. at 7, 8, 12-13):  Time and time again, over the course of the last ten years, this Court has explained that generally recognized appraisal techniques are acceptable methods by which to quantify obsolescence in Indiana's pre-2002 assessment system . . . The Court has held that the method utilized by US Steel in its Report is a generally recognized appraisal technique for calculating functional obsolescence . . . Many jurisdictions ascribe to the theory that bankruptcy sales can be reliable indicators of property value . . . Lake County's blanket assertion that the bankruptcy sales cannot be used as comparables goes to the weight of US Steel's evidence, not its admissibility. As such, Lake County's assertion is without merit.
 

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Shepard, Chief Justice.

The City of South Bend now owns much of the land where Studebaker Corp. once manufactured automobiles. It has sued Cooper Industries, LLC and others for environmental damage done to the site. In this appeal, the questions are whether the applicable statute of limitation bars these claims and whether appellant Cooper Industries is the corporate successor to Studebaker such that it may be liable on these environmental claims. We hold that the statute of limitation bars the City's common law claims, that its claim under the Environmental Legal Action statute accrued at the time the statute became effective and thus is not barred, and that Cooper is the corporate successor to Studebaker for these purposes.

Conclusion (slip op. at 32): We affirm the trial court's order and remand for further proceedings on the merits of the ELA claim.

Key Analysis (slip op. at 22, 30, 31): Because we understand the ELA as addressing the issue of "brownfields," that the legislature did not intend to bar cities from bringing these actions, and that the statute of limitation did not run until the cause existed, we hold that South Bend may proceed with its ELA claims . . . The fact the successor corporation was incorporated in Delaware does not control. While the law of the state of incorporation may determine issues relating to the internal affairs of a corporation, different principles apply where the rights of third parties external to the corporation are at issue . . . This case is a claim about property damage. The injury occurred in Indiana. The law of the place of the wrong occurred (lex loci delicti) governs. In disputes such as this, particularly because it involves a third person, the law of the state with the most significant relationship to the dispute – here Indiana – applies.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

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UNPUBLISHED

The Gary Community School Corporation (the School) appeals from a jury verdict in favor of Lolita Roach-Walker (Walker) on Walker's complaint for damages arising from her slip and fall on the School's property. The School presents two issues for review, which we consolidate and restate as whether the School is entitled to immunity from liability under Indiana Code Section 34-13-3-3 of the Indiana Tort Claims Act (the Act).

Conclusion (slip op. at 6):  We conclude as a matter of law that the School has not demonstrated that it was entitled to immunity under the Indiana Tort Claims Act. Affirmed.

Key Analysis (slip op. at 3-4, 5):  Immunity under Section 34-13-3-3 contains two key concepts, one temporal and one causal. A determination of whether a condition is temporary or permanent is separate from a determination of whether the condition is due to some other cause. The focus of whether the condition is permanent is whether the governmental body has had the time and opportunity to remove the condition but failed to do so . . . The School has not met its burden to show on appeal that the condition that caused Walker's fall was temporary.

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This case arises out of a church's failure to apply for a property tax exemption for several years and the Marion County Treasurer's and the Marion County Auditor's ("Marion County") repeated attempts to place the property on its tax sale list to collect the resulting delinquent taxes and fees. After Marion County sold a parcel of land owned by Revival Temple Apostolic Church ("Revival Temple") in a tax sale in 2005, Revival Temple repurchased the property with funds borrowed from Huntington National Bank ("Huntington Bank"). After the trial court granted a motion to set aside the tax sale in 2006, Marion County refused to refund the full repurchase price. Huntington Bank filed a contempt action against the county, alleging that Marion County willfully violated orders issued by the trial court in 2003 and 2004 that deemed the property ineligible for tax sale and willfully violated the trial court's 2006 order setting aside the tax sale by refusing to refund the repurchase price. The trial court found Marion County in contempt of all three orders, ordered it to refund the entire repurchase price, prohibited the county from placing the property on the tax sale list during future years, and awarded Huntington Bank attorneys' fees and costs. On appeal, Marion County argues the trial court abused its discretion in finding it in contempt of the 2003 and 2004 orders because the orders did not unambiguously prohibit it from placing the property on the tax sale list in the future. Marion County also argues that the trial court abused its discretion in finding it in contempt of the 2006 order because the trial court lacked subject matter jurisdiction to order the refund of property taxes already paid. Finally, Marion County argues that the trial court lacked subject matter jurisdiction to prohibit it from placing Revival Temple's property on the Marion County tax sale list in all future years.

Conclusion (slip op. at 17): The trial court abused its discretion in finding Marion County in contempt of the 2003, 2004, and 2006 orders. Further, the trial court lacked subject matter jurisdiction to prohibit Marion County from placing Revival Temple's property on the Marion County tax sale list in future years. Finally, because we reverse each of the trial court's contempt findings, we reverse the award of attorneys' fees and costs to Huntington Bank. Reversed.

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Sullivan, Justice.

In this case, certain property owners appealed a trial court’s order of condemnation and appropriation in respect of land for sewer easements and persuaded the Court of Appeals to stay the trial court’s order requiring an appeal bond. We assumed jurisdiction of the case to vacate the action of the Court of Appeals and now affirm the judgment of the trial court on the merits.


Key Analysis (slip op. at 5, 7, 9, 10): Indiana Code § 8-1-8-1 and I.C. § 32-24-4-1 are clearly not repugnant to one another and thus present no impediment to West Boggs exercising condemnation authority . . . Because West Boggs hired an independent appraiser and it used the appraisal in the Offer Letters prior to the commencement of condemnation proceedings, West Boggs’s offer was in good faith as a matter of law . . . the Property Owners had ample notice of and multiple opportunities to respond to West Boggs’s Motion for Summary Judgment . . . None of the Property Owners responded within the required 30 days and after 39 days the trial court entered individual summary judgments . . . As such, the Property Owners were not denied their due process rights. They had an opportunity to respond but did not do so.

Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.