ATTORNEYS FOR PETITIONER:                     ATTORNEYS FOR RESPONDENT:
DAVID A. SUESS                                CURTIS T. HILL, JR.
DANIEL R. ROY                                 ATTORNEY GENERAL OF INDIANA
BENJAMIN A. BLAIR                             WINSTON LIN
FAEGRE BAKER DANIELS LLP                      KELLY S. EARLS
Indianapolis, IN                              ZACHARY D. PRICE
                                              DEPUTY ATTORNEYS GENERAL
                                              Indianapolis, IN



                               IN THE                                           FILED
                                                                           May 22 2019, 12:26 pm
                         INDIANA TAX COURT                                      CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court


CONVENTION HEADQUARTERS                         )
HOTELS, LLC,                                    )
                                                )
      Petitioner,                               )
                                                )
             v.                                 ) Cause No. 19T-TA-00006
                                                )
MARION COUNTY ASSESSOR,                         )
                                                )
      Respondent.                               )


                    ORDER ON RESPONDENT’S MOTION TO DISMISS

                                  FOR PUBLICATION
                                    May 22, 2019

WENTWORTH, J.

      On January 25, 2019, the Court dismissed Convention Headquarters Hotels, LLC’s

(“CHH’s”) first direct appeal with this Court for lack of subject matter jurisdiction. See

generally Convention Headquarters Hotels v. Marion Cty. Assessor (Convention

Headquarters I), 119 N.E.3d 245 (Ind. Tax Ct. 2019). In that case, the Court held that

even though Indiana Code §§ 6-1.1-15-4(i)(2) and 6-1.1-15-5(g) provided for a direct

appeal to the Tax Court without an Indiana Board of Tax Review final determination, the
Court lacked subject matter jurisdiction over CHH’s direct appeal “because the maximum

time for the Indiana Board to give notice of its final determination had not elapsed when

CHH sought judicial review[.]” Id. at 250. Accordingly, the Court remanded the matter to

the Indiana Board explaining that “once the maximum time for the Indiana Board to give

notice of its final determination lapses (i.e., 366 days after CHH filed its Form 131 petition),

CHH may once again seek direct review in the Tax Court.” Id.

       On March 1, 2019, CHH filed its second direct appeal with the Court claiming,

among other things, that the 2010 assessment of its real property violated the Equal

Protection and Due Process Clauses of the U.S. Constitution and the Property Taxation

and Equal Privileges and Immunities Clauses of Indiana’s Constitution. Before the Court

addresses the merits in this case, however, it must determine anew whether it has subject

matter jurisdiction over this direct appeal. The Court finds it does not.

                                      BACKGROUND

       On January 28, 2019, upon remand, the Indiana Board scheduled CHH’s case for

a hearing on March 1, 2019. (Resp’t Mot. Dismiss, Ex. 1 at 2.) On February 8, the

Assessor requested that the Indiana Board issue a subpoena duces tecum to CHH, which

it did, requiring the deposition of CHH’s designated Indiana Trial Rule 30(B)(6) witness

on February 22 and the simultaneous production of certain documents. (See Resp’t Mot.

Dismiss, Ex. 1 at 3-9, 22-27.) See also 52 IND. ADMIN. CODE 2-8-4(d) (providing that “upon

receipt of a properly filed request, the appropriate subpoena shall be issued”). On

February 14, the Indiana Board issued a “Preliminary Order on Remand” explaining the

propriety of scheduling the March 1 hearing. (See Resp’t Mot. Dismiss, Ex. 1 at 12-14.)

       CHH responded on February 20 by filing a “Motion to Vacate Hearing,” explaining



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that it would not attend the March 1 hearing because it planned to file another direct

appeal with the Tax Court after the maximum time elapsed on February 28, 2019, the

date it calculated using its own arithmetic. (See Resp’t Mot. Dismiss, Ex. 1 at 15-21.) In

addition, the day before the February 22 deposition, CHH filed a “Motion for Protective

Order Pursuant to Trial Rule 26(C),” claiming a protective order was warranted “to resolve

the deficiencies in, clarify, and otherwise tailor the scope of the [Assessor’s 30(B)(6)

deposition] Notice and Request [for Production of Documents] so that [it] could

adequately prepare its witness(es) for a deposition.” (Resp’t Mot. Dismiss, Ex. 1 at 22-

27.)

       On February 22, the Assessor appeared for the deposition, but CHH did not,

consistent with its previous communications with both the Assessor and the Indiana

Board. (See, e.g., Resp’t Mot. Dismiss, Ex. 1 at 43-48.) Consequently, that same day,

the Assessor filed a “Motion to Compel” the deponent’s appearance and the production

of documents. (Resp’t Mot. Dismiss, Ex. 1 at 28-44.) On February 25, the Indiana Board

denied CHH’s Motion to Vacate the March 1 hearing and explained that it would address

the pending discovery issues during the hearing. (Resp’t Mot. Dismiss, Ex. 1 at 49-52.)

       On March 1 at 12:02 a.m., nearly nine hours before the commencement of the

hearing, CHH filed this second direct appeal with the Tax Court, immediately notifying the

Indiana Board and the Assessor of its actions. (See Pet’r Pet. Judicial Review at 1; Resp’t

Mot. Dismiss, Ex. 1 at 53.) The Assessor appeared for the Indiana Board’s 9:00 a.m.

March 1 hearing, but CHH did not. (Resp’t Mot. Dismiss, Ex. 1 at 53.) Thereafter, the

Assessor filed a “Motion for Sanctions” with the Indiana Board for CHH’s failure to appear.

(Resp’t Mot. Dismiss, Ex. 1 at 54-58.)



                                            3
       On April 1, 2019, the Assessor moved to dismiss CHH’s second direct appeal with

the Tax Court claiming, among other things, that the appeal was premature. CHH filed

its response brief on April 11, 2019, and the Assessor filed a brief in reply on April 18,

2019. Thereafter, the Court took the matter under advisement.

                                            LAW

       Subject matter jurisdiction, the power of a court to hear and determine a particular

class of cases, can only be conferred upon a court by the Indiana Constitution or by

statute. Grandville Co-op., Inc. v. O’Connor, 25 N.E.3d 833, 836 (Ind. Tax Ct. 2015).

Consequently, the “‘[t]he only relevant inquiry in determining whether any court has [ ]

subject matter jurisdiction is to ask whether the kind of claim which the plaintiff advances

falls within the general scope of the authority conferred upon [the] court by the constitution

or by statute.’” Marion Cty. Auditor v. State, 33 N.E.3d 398, 400-01 (Ind. Tax Ct. 2015)

(quoting Pivarnik v. N. Ind. Pub. Serv. Co., 636 N.E.2d 131, 137 (Ind. 1994)).

       The Tax Court is a court of limited jurisdiction. IND. CODE § 33-26-3-1 (2019). It

has “exclusive jurisdiction over any case that arises under the tax laws of Indiana and

that is an initial appeal of a final determination made by” the Indiana Board. I.C. § 33-26-

3-1. The Tax Court also has “any other jurisdiction conferred by statute[.]” IND. CODE §

33-26-3-2 (2019). See also IND. CODE § 33-26-3-3 (2019) (stating that the Court does not

have “jurisdiction over a case unless . . . [it] has otherwise been specifically assigned

jurisdiction by statute”). Accordingly, the Tax Court has subject matter jurisdiction over

an appeal, even though there is no Indiana Board final determination, if the appeal is filed

after “the maximum time elapses for the Indiana board to give notice of its final

determination.” See IND. CODE §§ 6-1.1-15-4(i)(2), -5(g) (2019) (emphases added).



                                              4
                                        ANALYSIS

       The issue before the Court, raised by the Assessor’s Motion to Dismiss pursuant

to Indiana Trial Rule 12(B)(1), is whether the Tax Court has subject matter jurisdiction

over this case. (See generally Resp’t Mot. Dismiss.) In support of its claim, the Assessor

contends that CHH exercised its right to appeal prematurely. (See, e.g., Resp’t Mot.

Dismiss at 1.) In response, CHH asserts, among other things, that the Assessor’s

12(B)(1) Motion to Dismiss was untimely filed and thus waived. (See Pet’r Resp. Opp’n

Resp’t Mot. Dismiss (“Pet’r Br.”) at 8-10 (asserting that under the Trial Rules, rather than

the Tax Court Rules, the Assessor only had 20 days after service of the prior pleading to

file his motion).)

       The Assessor’s 12(B)(1) Motion to Dismiss asserts that the Tax Court does not

have the power to hear this case in the first instance, a claim that can be raised at any

time. See Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003) (stating that the power

to hear a matter is of such great import that even when the parties do not question an

appellate court’s subject matter jurisdiction, the court may consider the issue sua sponte).

See also, e.g., Convention Headquarters I, 119 N.E.3d at 247 (indicating that the Tax

Court sua sponte raised the issue of subject matter jurisdiction). Accordingly, the Court

finds that the Assessor’s 12(B)(1) Motion to Dismiss is not time barred.

       Turning to the merits of the Assessor’s 12(B)(1) Motion to Dismiss, the Assessor

claims the Court lacks subject matter jurisdiction over CHH’s second direct appeal




                                             5
because CHH exercised its right to appeal prematurely.1 (See, e.g., Resp’t Mot. Dismiss

at 1.) In reply, CHH states that its second direct appeal was timely filed on March 1, 2019,

several days after the maximum time elapsed for the Indiana Board to issue its final

determination. (See, e.g., Pet’r Br. at 4-8 (stating that the maximum time elapsed on

February 28, 2019).) Specifically, CHH asserts that the “maximum time elapsed” under

Indiana Code § 6-1.1-15-5(g) on February 28, 2019, which it determined by substituting

its own method of calculation for that held by the Tax Court in Convention Headquarters

I regarding these very facts and circumstances. (Compare, e.g., Pet’r Br. at 8 with

Convention Headquarters I, 119 N.E.3d at 248-50.)

       CHH neither requested a rehearing with the Tax Court nor filed a petition for review

with the Indiana Supreme Court to challenge the maximum time elapsed holding in

Convention Headquarters I. Thus, while CHH’s new arguments and authorities could

have been considered had they been raised during the pendency of Convention

Headquarters I, the Court will not consider them now. See Indiana Alcohol & Tobacco

Comm’n v. Spirited Sales, LLC, 79 N.E.3d 371, 381 (Ind. 2017) (stating that

“[r]es judicata applies when ‘a particular issue is adjudicated and then put in issue in a



1
   The Assessor also argues that CHH’s failure to attend the March 1 hearing prevented the
Indiana Board from extending the period by which the “maximum time elapsed,” and CHH should
not benefit from its bad behavior. (See Resp’t Mot. Dismiss at 5-6 (citing IND. CODE § 6-1.1-15-
4(e) (2019)); Resp’t Reply Supp. Mot. Dismiss at 3.) The Court notes that the Indiana Board was
not authorized to set the hearing on March 1, more than nine months after CHH filed its Form 131
petition. See I.C. § 6-1.1-15-4(e) (providing that “the Indiana board shall conduct a hearing not
later than nine (9) months after a petition in proper form is filed with the Indiana board” (emphasis
added)); Indiana Dep’t of State Revenue v. Horizon Bancorp, 644 N.E.2d 870, 872 (Ind. 1994)
(stating that unambiguous statutes must be read to mean what they plainly express, and their
plain meanings may not be enlarged or restricted); Convention Headquarters Hotels v. Marion
Cty. Assessor, 119 N.E.3d 245, 250 (Ind. Tax Ct. 2019) (indicating that more than nine months
had elapsed between the filing of CCH’s Form 131 petition and its first direct appeal with the Tax
Court). The Court will not address this argument, however, having granted the Assessor’s Motion
on other grounds.
                                                 6
subsequent suit on a different cause of action between the same parties or their privies’”)

(citation omitted).

       This Court’s holding in Convention Headquarters I stated that the maximum time

for CHH to file a direct appeal pursuant to Indiana Code §§ 6-1.1-15-4(i)(2) and 6-1.1-15-

5(g) elapsed on the 366th day after CHH filed its Form 131 petition with the Indiana Board.

Convention Headquarters I, 119 N.E.3d at 250. That day was March 3, 2019, not the

February 28, 2019, date derived from CHH’s new math. (See Pet’r Br. at 6.) CHH ignored

that holding and, as a result, its second direct appeal is premature under the holding in

Convention Headquarters I.

                                     CONCLUSION

       Based on the holding in Convention Headquarters I and the facts in this case, the

maximum time for the Indiana Board to give notice of its final determination elapsed on

March 3, 2019. CHH filed its second direct appeal with the Tax Court on March 1, 2019.

Consequently, the Court must once again DISMISS CHH’s appeal for lack of subject

matter jurisdiction and REMAND the matter to the Indiana Board for action consistent with

this opinion.

       SO ORDERED this 22nd day of May 2019.




                                                 Martha Blood Wentworth, Judge
                                                 Indiana Tax Court




Distribution:
David A. Suess, Daniel R. Roy, Benjamin A. Blair, Winston Lin, Kelly S. Earls, Zachary
D. Price, Indiana Board of Tax Review

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