                                                                 FILED
                                                            Jul 20 2016, 8:44 am
MEMORANDUM DECISION
                                                                 CLERK
                                                             Indiana Supreme Court
Pursuant to Ind. Appellate Rule 65(D),                          Court of Appeals
                                                                  and Tax Court

this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                      ATTORNEY FOR APPELLEE
Jon L. Orlosky                                              David W. Stone IV
Muncie, Indiana                                             Stone Law Office & Legal
                                                            Research
                                                            Anderson, Indiana



                                              IN THE
       COURT OF APPEALS OF INDIANA

M. Jewell, LLC,                                             July 20, 2016
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            48A04-1510-MI-1715
           v.                                               Appeal from the
                                                            Madison Circuit Court
Ezeguiel Garcia and                                         The Honorable
William Shoemaker1,                                         Thomas Newman, Jr., Judge
Appellee-Plaintiff.                                         Trial Court Cause No.
                                                            48C03-1410-MI-639




1
    William Shoemaker was a party below but has not appeared in this proceeding.


Court of Appeals of Indiana | Memorandum Decision 48A04-1510-MI-1715| July 20, 2016     Page 1 of 7
      Kirsch, Judge.


[1]   M. Jewell, LLC (“Jewell”) appeals the denial of a Motion to Correct Errors

      regarding its Order Setting Aside a Tax Deed and Sale and raises the following

      restated issue: whether the trial court abused its discretion in denying the

      motion.


[2]   We affirm.


                                 Facts and Procedural History
[3]   At all times here relevant, Ezeguiel Garcia (“Garcia”) was the owner of

      property at 2830 East Cross Street, Anderson, Indiana (“the Property”). The

      property was used as a religious organization and was exempt from property

      tax; however, Indiana law provides for the collection of unpaid drainage

      assessments in the same manner as that for property tax assessments. Indiana

      Code section 6-1.1-11-9.


[4]   Due to an unpaid ditch assessment, the Property was included in Madison

      County’s October 2013 tax sale. The Madison County Auditor (“the Auditor”)

      listed Garcia as the owner of the Property and his address as “1350 N.

      Delaware Street Indianapolis, Indiana 46202.” SRI was the company

      responsible for providing tax sale notices on behalf of the Auditor. In July and

      August of 2013, SRI sent a Notice of Tax Sale and a Notice of Redemption

      Period to “1350 N. Delaware St. 2880 E. Indianapolis, Indiana” (emphasis

      Court of Appeals of Indiana | Memorandum Decision 48A04-1510-MI-1715| July 20, 2016   Page 2 of 7
      added). Appellant’s App. at 18, 21, 24. The notices were addressed to Izequiel

      Garcia, not Ezeguiel Garcia, the name of the grantee on the deed. Id. at 21, 24.


[5]   Jewell purchased the tax certificate for the Property at the tax sale in October

      2013. Tr. at 10. In February 2014 Jewell sent notices of sale and notices of date

      of expiration of period of redemption to the same nonexistent address used by

      SRI on behalf of the Auditor and the address listed on the Corporate Warranty

      Deed. All of the notices of sale were returned “Undeliverable as Addressed.”

      Appellant’s App. at 34.


[6]   In August of 2014, Jewell posted notice of the tax sale on the property. The

      notice was placed on a side door of the church which was rarely used. Id. at 6.

      In October of 2014, Jewell sent notice of filing petition for tax deed by both

      U.S. mail, certified with return receipt requested and by first class US Mail to

      both addresses. One of the notices of filing petition for tax deed was delivered

      to the Delaware Street address. Id. at 47. Jewell then filed a petition for a tax

      deed, and the trial court entered its Order Directing the Auditor of Madison

      County to Issue a Tax Deed for the Property to Jewell.


[7]   Jewell posted a notice to vacate the property on the front door of the church,

      Garcia challenged the issuance of the Order stating: “[he] never received a

      notification they sent it to a [sic] address we don’t have. Our address is 1924

      Yandes St. Indianapolis St.” Appellant’s App. at 50-52.


[8]   Following a hearing on Garcia’s motion on April 13, 2015, the trial court

      determined that Garcia had not been properly notified of the Tax Sale and that

      Court of Appeals of Indiana | Memorandum Decision 48A04-1510-MI-1715| July 20, 2016   Page 3 of 7
       Jewell’s attempts to cure the lack of notice for the tax sale proceedings and

       notice of sale were not reasonably calculated to apprise Garcia of the

       proceedings. The court set aside its Order Directing the Auditor of Madison

       County to Issue a Tax Deed for the Property. Id. at 5-6.


[9]    Jewell filed a Motion to Correct Errors, which the trial court denied, and Jewell

       now appeals.


                                      Discussion and Decision
[10]   In general, we review a trial court’s ruling on a motion to correct errors for an

       abuse of discretion. Ind. Bureau of Motor Vehicles v. Charles, 919 N.E.2d 114, 116

       (Ind. Ct. App. 2009); Speedway SuperAmerica, LLC, v. Holmes, 885 N.E.2d, 1265,

       1270 (Ind. 2008), reh’g denied. It is an abuse of discretion when the trial court’s

       decision is against the logic and effect of the facts and circumstances before it,

       or the reasonable inferences drawn from them. Lighty v. Lighty, 879 N.E.2d

       637, 640 (Ind. Ct. App. 2008), reh’g denied. We will not disturb the trial court’s

       order unless it was clearly erroneous. Infinity Prods., Inc. v. Quandt, 810 N.E.2d

       1028, 1031 (Inc. 2004). Only the evidence most favorable to the judgment and

       all reasonable inferences drawn therefrom will be considered. Id. We will not

       reweigh the evidence or assess the credibility of the witnesses. Id. at 1032.


[11]   Indiana Code section 6-1.1-24-4 requires the Auditor to notify the owner of

       record that the property is eligible to be sold in a tax sale and of the redemption

       process. The Indiana Supreme Court has summarized the notification

       procedures as follows:

       Court of Appeals of Indiana | Memorandum Decision 48A04-1510-MI-1715| July 20, 2016   Page 4 of 7
               The property owner and any person with a “substantial property
               interest of public record” must each 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 will be filed (i.e., redemption notice). The second notice
               announces that the purchaser has petitioned for a tax deed. (i.e.,
               notices of petition for tax deed).


       Ienma v. JP Morgan Chase Bank, N.A., 992 N.E.2d at 738-39 (Ind. Ct. App. 2013)

       (quoting Tax Certificate Invs., Inc. v. Smethers, 714 N.E.2d 131, 133 (Ind. 1999)

       (internal citations omitted)).


[12]   Jewell contends that Garcia owed assessment fees for the Property, that notices

       were mailed by certified and First Class Mail to the address of record in the

       Auditor’s office, and that all notices required under Indiana Code sections 6-

       1.1-24-4, 6-1.1-25-4.5(d) and 6-1.1-25-4.6(a) were reasonably calculated to

       inform Garcia of the pending proceedings. It also contends that the notices sent

       to Garcia were substantially compliant with the statutes, that the tax sale was

       valid and should have been sustained, and that the trial court erred when it

       denied its motion to correct errors following the setting aside of the tax deed

       and sale of the Property.


[13]   Jewell also contends that there was no due process basis to defeat the tax sale.

       It argues that even though Garcia said he did not receive any of the mailed

       notices, “[d]ue process does not require that a property owner receive actual

       notice before the government may take his property.” Jones v. Flowers, 547 U.S.

       220, 226 (U.S. 2006). Jewell further asserts that the physical posting on the
       Court of Appeals of Indiana | Memorandum Decision 48A04-1510-MI-1715| July 20, 2016   Page 5 of 7
       Property door was an appropriate and effective way of ensuring that a person is

       actually apprised of proceedings against him and that Garcia failed to notify the

       Auditor of his correct address.


[14]   The tax sale process requires the issuance of notices to the property owner. Ind.

       Code §§ 6-1.1-24-4, 6-1.1-25-4.5(d) and 6-1.1-25-4.6(a). Only if the county

       auditor gives notice of the sale to the owner of record at the time of the sale is a

       purchaser entitled to a tax deed to the property. Ind. Code § 6-1.1-25-

       4.5(a)(3)(B). Finally, a person may, upon appeal, defeat the title conveyed by a

       tax deed if the notices required by Indiana Code section 6-1.1-24-4, and sections

       4.5 and 4.6 of chapter 25 were not in substantial compliance with the manner

       prescribed in those sections. Ind. Code section 6-1.1-25-16(7).


[15]   Here, the certified notices before the sale were not sent to the last address of the

       owner listed on the deed. SRI, who was responsible for providing notice for the

       Auditor, used the same incorrect address for more than one notice that was sent

       to Garcia, and SRI misnamed the owner in multiple notices. This did not

       constitute substantial compliance with the statutory requirements. Garcia was

       entitled to notice before and after the tax sale; the post-sale notice that was

       signed for at the Delaware Street address, does not cure lack of notice before the

       sale.


[16]   The trial court rejected Jewell’s assertion that the notice posted on the

       Property’s side door was sufficient notice observing “[i]nterestingly, when the

       Plaintiff’s posted a subsequent notice demanding [Garcia] to vacate the real


       Court of Appeals of Indiana | Memorandum Decision 48A04-1510-MI-1715| July 20, 2016   Page 6 of 7
       estate; that notice was posted conspicuously on the front door to the church.”

       Appellant’s App. at 6.


[17]   The trial court did not err when it denied Jewell’s motion to correct error.


[18]   Affirmed.


[19]   Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1510-MI-1715| July 20, 2016   Page 7 of 7
