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.




      Court of Appeals of Indiana | Opinion on Rehearing 18A-MI-2150 | October 8, 2019   Page 4 of 4
