MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  Jun 17 2019, 9:30 am

court except for the purpose of establishing                                    CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEES
Bradley D. Hasler                                        Traci Marie Cosby
Margaret M. Christensen                                  Jess Reagan Gastineau
Bingham Greenebaum Doll LLP                              Office of Corporation Counsel
Indianapolis, Indiana                                    Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Americhina, LLC,                                         June 17, 2019
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A-MI-1272
        v.                                               Appeal from the Marion Circuit
                                                         Court
Marion County Auditor and                                The Honorable Sheryl Lynch,
Marion County Treasurer,                                 Judge
Appellees-Petitioners
                                                         The Honorable Mark A. Jones,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49C01-1711-TP-041106



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-MI-1272 | June 17, 2019                      Page 1 of 8
                                              Case Summary
[1]   Americhina, LLC, failed to pay taxes on a tract of real property in Marion

      County. The tract did not sell at public auction, and Americhina did not

      redeem the tract within the statutory redemption period. The Marion County

      Auditor then filed a petition for a tax deed to the tract pursuant to Indiana Code

      Section 6-1.1-25-4.6. The trial court issued an order granting the petition over

      Americhina’s objection. Americhina filed a motion to set aside the order,

      which was denied, and a motion to reconsider, which was also denied.

      Americhina then filed a motion to correct error and a motion to supplement

      that motion, in which it argued for the first time that the Auditor did not have

      jurisdiction to petition for the tax deed and therefore the petition is void. The

      trial court denied Americhina’s motion to correct error.


[2]   Americhina now appeals. We conclude that Americhina has conflated the

      concepts of jurisdiction and statutory authority and that Americhina waived its

      argument by raising it for the first time in its motion to supplement its motion to

      correct error. Therefore, we affirm.


                                  Facts and Procedural History
[3]   The relevant facts are few and undisputed.1 Americhina owned a tract of real

      property in Marion County that was offered for sale at public auction for




      1
        The Auditor and co-appellee Marion County Treasurer claim that they “generally agree” with Americhina’s
      straightforward statement of the case, Appellees’ Br. at 6, but then include numerous irrelevant procedural
      details in their statement of facts.

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1272 | June 17, 2019                   Page 2 of 8
nonpayment of taxes in October 2015. The tract did not sell, and Americhina

did not redeem it within the 120-day redemption period specified in Indiana

Code Section 6-1.1-25-4. In March 2016, the Auditor filed a petition for a tax

deed to the tract pursuant to Section 6-1.1-25-4.6, which reads in pertinent part

as follows:


         (a) After the expiration of the redemption period specified in
         section 4 of this chapter but not later than three (3) months after
         the expiration of the period of redemption:


                  (1) the purchaser, the purchaser’s assignee, the
                  county executive, the county executive’s assignee,
                  or the purchaser of the certificate of sale[2] under IC
                  6-1.1-24-6.1 may; or

                  (2) in a county where the county auditor and county
                  treasurer have an agreement under section 4.7 of
                  this chapter, the county auditor shall, upon the
                  request of the purchaser or the purchaser’s assignee;


         file a verified petition in accordance with subsection (b) in the
         same court in which the judgment of sale was entered asking the




2
  Indiana Code Section 6-1.1-24-6(a) provides that if a tract of real property does not fetch the minimum sale
price at auction, “the county executive acquires a lien in the amount of the minimum sale price. This lien
attaches on the day on which the tract or item was offered for sale.” “When a county executive acquires a
lien under this section, the county auditor shall issue a tax sale certificate to the county executive in the
manner provided in section 9 of this chapter. The county auditor shall date the certificate the day that the
county executive acquires the lien.” Ind. Code § 6-1.1-24-6(b). “When a county executive acquires a
certificate under this section, the county executive has the same rights as a purchaser.” Id. The county
executive may sell the certificate to the public, Ind. Code § 6-1.1-24-6.1, but there is no indication that
happened here.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1272 | June 17, 2019                       Page 3 of 8
               court to direct the county auditor to issue a tax deed if the real
               property is not redeemed from the sale.


      Americhina filed an objection, which does not appear in the record because

      neither Americhina nor the trial court clerk has a copy of it. In August 2016,

      the trial court issued an order granting the Auditor’s petition.


[4]   Americhina filed a motion to set aside the order, which was denied, as well as a

      motion to reconsider, which was also denied. In May 2018, Americhina filed a

      motion to correct error. In June 2018, Americhina, by new counsel, filed a

      motion to supplement its motion to correct error, in which it argued for the first

      time that because the tract was not purchased at auction, only the county

      executive, i.e., the Mayor of Indianapolis,3 had “jurisdiction” to petition for the

      tax deed under Section 6-1.1-25-4.6, and therefore the Auditor’s petition is void.

      Appellant’s App. Vol. 3 at 35. After a hearing, the trial court issued an order

      summarily denying Americhina’s motion to correct error. This appeal ensued. 4


                                       Discussion and Decision
[5]   Americhina contends that the trial court erred in denying its motion to correct

      error. “We review rulings on motions to correct error for an abuse of




      3
       See Ind. Code §§ 6-1.1-23.9-1(2) (defining “county executive” for purposes of Indiana Code Chapter 25 in
      pertinent part as, “[i]n a county containing a consolidated city [i.e., Marion County and Indianapolis], the
      executive of the consolidated city”), 36-1-2-5(3) (defining “executive” in pertinent part as “mayor of the
      consolidated city, for a county having a consolidated city”).
      4
        In an apparently preemptive argument, Americhina asserts that its appeal is timely because the trial court’s
      ruling on its motion to correct error is the only final appealable order that has been issued thus far. The
      appellees do not argue otherwise, and we agree.

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1272 | June 17, 2019                       Page 4 of 8
      discretion. An abuse of discretion occurs if the trial court’s decision was against

      the logic and effect of the facts and circumstances before the court or if the court

      misapplied the law.” Harr v. Hayes, 106 N.E.3d 515, 521 (Ind. Ct. App. 2018)

      (citation omitted), corrected on reh’g, 108 N.E.3d 405.


[6]   Specifically, Americhina argues that because the tract was not purchased at

      auction, only the county executive (or his assignee5) could file a petition for tax

      deed pursuant to Section 6-1.1-25-4.6(a); thus, the Auditor was “without

      jurisdiction” to file the petition, which is therefore void. Appellant’s Br. at 21

      (quoting Ind. Asphalt Paving Co. v. Grand Lodge, Knights of Pythias, 96 Ind. App.

      300, 307, 170 N.E. 85, 87 (1933), trans. denied (quoting City of Bluffton v. Miller,

      33 Ind. App. 521, 522, 70 N.E. 989, 990 (1904) (“If the municipality attempts

      some other method than that provided by the statute, or goes beyond the

      authority given, to that extent it is without jurisdiction and its acts are void.”)).

      Americhina further argues that “[a] void action is subject to collateral attack at

      any time.” Id. (quoting Mies v. Steuben Cty. Bd. of Zoning App., 970 N.E.2d 251,

      258 (Ind. Ct. App. 2012), trans. denied).


[7]   We need not address the merits of Americhina’s argument regarding the

      interpretation of Section 6-1.1-25-4.66 because Americhina (and the cases it



      5
          The appellees concede that the Auditor is not the county executive’s assignee. Appellees’ Br. at 18.
      6
        At one time, the statute specifically authorized the county auditor to petition for a tax deed. See, e.g., Ind.
      Pub. Law 83-1989 § 15 (“At any time within five (5) months prior to the expiration of the time of redemption
      from the sale (as specified in section 4 of this chapter), the purchaser or the purchaser’s assignee may (or, in a
      county having a consolidated city or only two (2) second class cities, the county auditor shall) file a verified


      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1272 | June 17, 2019                         Page 5 of 8
      relies on) have conflated the concepts of jurisdiction and statutory authority. In

      2006, the Indiana Supreme Court clarified that “there are only two types of

      jurisdiction in Indiana: subject matter and personal.” HRC Hotels, LLC v. Metro.

      Bd. of Zoning App. Div. II, 8 N.E.3d 203, 206 (Ind. Ct. App. 2014) (citing K.S. v.

      State, 849 N.E.2d 538, 540 (Ind. 2006)). “Subject matter jurisdiction is the

      power to hear and determine cases of the general class to which any particular

      proceeding belongs. Personal jurisdiction requires that appropriate process be

      effected over the parties.” K.S., 849 N.E.2d at 540. Where these two exist, a

      court’s decision may not be set aside through collateral attack. Id.


[8]   “Attorneys and judges alike frequently characterize a claim of procedural error

      as one of jurisdictional dimension.” Id. at 541. “Real jurisdictional problems

      would be, say, a juvenile delinquency adjudication entered in a small claims

      court, or a judgment rendered without any service of process. Thus,

      characterizing other sorts of procedural defects as ‘jurisdictional’

      misapprehends the concepts.” Id. at 542. “Alleged non-jurisdictional

      procedural errors are waived if not raised at an appropriate time.” Johnson Cty.

      Rural Elec. Membership Corp. v. S. Cent. Ind. Rural Elec. Membership Corp., 883

      N.E.2d 141, 145 (Ind. Ct. App. 2008). “[A] party who was asleep at the wheel

      has a powerful incentive to couch a claim of procedural error as a jurisdictional

      defect either to circumvent the doctrine of waiver or to open up an avenue for




      petition in the same court in which the judgment of sale was entered asking the court to direct the county
      auditor to issue a tax deed if the real property is not redeemed from the sale.”). In 2006, however, the
      legislature shifted that authority to the county executive, where it remains. Ind. Pub. Law 169-2006 § 30.

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1272 | June 17, 2019                      Page 6 of 8
      collateral attack.” R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 457

      (Ind. 2012).


[9]   A number of cases decided after K.S. “have made clear that failure to follow

      statutory guidelines for initiating a particular action do[es] not affect subject

      matter jurisdiction, so long as the action was filed in the proper court for such

      an action.” Blackman v. Gholson, 46 N.E.3d 975, 979 (Ind. Ct. App. 2015)

      (citing Fight Against Brownsburg Annexation v. Town of Brownsburg, 32 N.E.2d

      798, 805 (Ind. Ct. App. 2015)). Likewise, here, the Auditor’s alleged failure to

      follow the statutory guidelines for filing a petition for tax deed did not affect the

      trial court’s uncontested subject matter or personal jurisdiction in this case.

      Assuming, without deciding, that the Auditor was without statutory authority

      to file the petition, Americhina waived its challenge by raising the issue for the

      first time in its motion to supplement its motion to correct error. See Brown v.

      Lunsford, 63 N.E.3d 1057, 1061 (Ind. Ct. App. 2016) (holding that appellant

      waived claims of procedural error by “wait[ing] until she filed her motion to

      correct error to raise them”) (citing Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind.

      2000)); see also Covered Bridge Homeowners Ass’n, Inc. v. Town of Sellersburg, 971

      N.E.2d 1222, 1231-32 (Ind. Ct. App. 2012) (reframing alleged jurisdictional

      issue in annexation case as one of statutory authority in light of K.S. and

      subsequent cases), trans. denied (2013). Therefore, we affirm the trial court’s

      denial of Americhina’s motion to correct error.




      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1272 | June 17, 2019   Page 7 of 8
[10]   Affirmed.


       Bradford, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1272 | June 17, 2019   Page 8 of 8
