                                                                               FILED
                                                                           Jun 12 2017, 9:42 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
Jon L. Orlosky                                             CROWN CASTLE SOUTH LLC
Muncie, Indiana                                            Christopher S. Roberge
                                                           Elizabeth A. Roberge
                                                           Roberge Law
                                                           Carmel, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

David L. Jenner and Vickie                                 June 12, 2017
Jenner,                                                    Court of Appeals Case No.
Appellants-Petitioners,                                    53A05-1606-MI-1415
                                                           Appeal from the Monroe Circuit
        v.                                                 Court
                                                           The Honorable E. Michael Hoff,
Bloomington Cellular Services,                             Judge
Inc.,                                                      Trial Court Cause No.
Appellee-Respondent,                                       53C01-1409-MI-1703

        and


Crown Castle South LLC,
Appellee-Intervenor.




Bailey, Judge.




Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017                           Page 1 of 27
                                           Case Summary
[1]   David L. Jenner and Vickie Jenner (“the Jenners”) appeal the trial court’s

      judgment in favor of Crown Castle South, LLC (“Crown Castle”), which

      declared the Jenners’ tax deed to certain real property void. The Jenners raise

      three issues for our review, which we consolidate and restate as whether the

      trial court abused its discretion when it granted Crown Castle’s motion for relief

      from judgment under Trial Rule 60(B) and found the Jenners’ tax deed void for

      lack of statutory compliance.


[2]   We affirm.



                             Facts and Procedural History
[3]   In December of 1988, Bloomington Cellular Services, Inc. (“Bloomington

      Cellular”) became the owner of certain real property in Bloomington on West

      Vernal Pike (“the Property”) and had its interest in the Property recorded.

      Bloomington Cellular subsequently merged with Westel-Indianapolis Company

      (“Westel”), though the chain of title to the Property did not reflect the merger.

      At some point, a 228-foot tall cellular communications tower was built on the

      Property.


[4]   In 1999, Westel leased the maintenance and operation of the cell tower to

      Crown Castle. In March of 2000, Westel and Crown Castle entered into a

      supplemental lease agreement. Crown Castle recorded the supplemental lease

      agreement with the Monroe County Recorder in May of 2000. While the

      Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017   Page 2 of 27
      supplemental lease agreement refers to the 1999 lease agreement, the 1999 lease

      agreement was not recorded. The supplemental lease agreement was not placed

      in the chain of title for the Property in which Bloomington Cellular’s ownership

      of the land had been recorded. In August of 2008, Crown Castle entered into a

      sublease agreement with T-Mobile Central LLC (“T-Mobile”) for T-Mobile to

      use the cell tower. The sublease agreement was recorded with the Monroe

      County Recorder in April of 2009, but it, too, was not placed in the chain of

      title with Bloomington Cellular’s interest.


[5]   On October 2, 2014, the Monroe County Treasurer held a tax sale. At that tax

      sale, the Jenners purchased the tax sale certificate for the Property. The Jenners

      then did a title search on the Property and discovered only Bloomington

      Cellular as an interest holder in the Property’s chain of title. Accordingly, the

      Jenners provided Bloomington Cellular with the required notices, and, when

      Bloomington Cellular failed to redeem the Property, in November of 2015 the

      Jenners obtained a tax deed.


[6]   Less than one month later, the Jenners contacted Crown Castle for the first time

      regarding the Jenners’ claim of ownership of the Property. Crown Castle then

      attempted to negotiate with the Jenners regarding Crown Castle’s rights to the

      cell tower, but, in February of 2016, the Jenners rejected Crown Castle’s offer.

      Later that month, Crown Castle intervened in the Jenners’ tax-sale proceedings




      Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017   Page 3 of 27
      and moved, under Indiana Trial Rule 60(B), to have the court set aside the tax

      deed as void.1


[7]   The court held a hearing on Crown Castle’s motion in May of 2016. At that

      hearing, Crown Castle stated that it had two recorded interests in the Property,

      the 2000 supplemental lease agreement and the 2008 T-Mobile sublease

      agreement. However, Crown Castle acknowledged that, absent an online

      search of the Monroe County Recorder’s office for either Westel or Crown

      Castle specifically, those interests would not have been discovered. And Crown

      Castle further acknowledged that it was “not sure there would be a basis for [the

      Jenners] to even make that search” based only on a review of the Property’s

      chain of title. Tr. at 6.


[8]   Nonetheless, Crown Castle further argued that the Jenners should have known

      of Crown Castle’s possible interests not based on the Property’s chain of title

      but, rather, based on conspicuous signage at the Property that identified Crown

      Castle as the operator of the cell tower. That signage also provided Crown

      Castle’s contact information. Crown Castle offered a photograph of the

      signage, which was dated April 16, 2015, to the court as a “demonstrative

      exhibit” rather than as an evidentiary exhibit. Id. at 7. The Jenners did not




      1
        The trial court concluded that, although Crown Castle’s motion was outside the sixty-day period provided
      for under Indiana Code Section 6-1.1-25-4.6, the motion was nonetheless permissible in accordance with the
      timeframe described under Indiana Trial Rule 60(B). On appeal, the Jenners do not challenge the trial
      court’s conclusion on that issue and we do not consider it. See Ind. Appellate Rule 46(A)(8)(a).

      Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017                       Page 4 of 27
       object to this procedure or to Crown Castle’s display of the photograph to the

       court.


[9]    Rather, the Jenners argued that the photograph did not deserve to be given

       weight by the court for several reasons, namely: there was no indication as to

       where on the property the signage had been placed; there was “no evidence that

       these signs were readily available to the public” or “readily accessible…without

       trespassing”; and, despite the photograph’s apparent date of April 16, 2015,

       “there is no evidence as to when [the signs were] placed.” Id.at 11. The

       Jenners further argued that “an interest that was recorded outside of the chain

       of title…is no notice” to third parties. Id. at 15.


[10]   Following the parties’ arguments, the court took the matter under advisement.

       Subsequently, the court granted Crown Castle’s motion for relief from

       judgment and declared the tax deed void for lack of notice to a substantially

       interested party during the period of redemption. The court stated that Crown

       Castle’s signage on the Property put the Jenners on inquiry notice of Crown

       Castle’s possible interests, and, as the Jenners did not follow up on that notice

       and inform Crown Castle of the tax sale during the redemption period, the tax

       deed was therefore void. This appeal ensued.




       Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017   Page 5 of 27
                                   Discussion and Decision
                            The Nature of the Jenners’ Appeal
[11]   The Jenners appeal the trial court’s order granting Crown Castle’s motion for

       relief from judgment under Trial Rule 60. An order for relief from judgment

       under Trial Rule 60 is an equitable remedy within the trial court’s discretion. In

       re Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind. 2013). We review an order

       upon a motion for relief from judgment for an abuse of the trial court’s

       discretion. Id. An abuse of discretion occurs when the trial court’s order is

       clearly against the logic and effect of the facts and inferences supporting the

       judgment. Z.S. v. J.F., 918 N.E.2d 636, 639 (Ind. Ct. App. 2009).


[12]   Here, Crown Castle sought relief from judgment—namely, the trial court’s

       order granting the Jenners a tax deed—on the basis that it had not been served

       with notice of the Jenners’ request for the tax deed as required by our tax sale

       statutes. The trial court concluded that the Jenners’ notices were not in

       substantial compliance with the statute because no notice of the Jenners’

       petition for a tax deed had been given to Crown Castle. The court found that

       Crown Castle’s interest in the property had been recorded and was available for

       inspection, and that Crown Castle’s interest in the leasehold was further made

       clear through the placement of signs on the property. Thus, the court reasoned,

       the tax deed was void because the Jenners did not comply with the

       requirements of Indiana Code section 6-1.1-25-4.5 for notice prior to the

       issuance of a tax deed. The court also concluded that the Jenners had been


       Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017   Page 6 of 27
       placed on additional notice of the existence of Crown Castle’s interest because

       of language on a sign that Crown Castle had placed on a fence on the property.

       The sign requested that parties with inquiries regarding leases or other matters

       contact Crown Castle, and provided contact information.


[13]   The Jenners contend that the trial court erred. The Jenners argue that Crown

       Castle’s lease, though concededly recorded validly, was recorded outside the

       chain of title. As a result, the Jenners contend, they were unable to identify

       Crown Castle as an interest holder and thus were unable to provide notice of

       their petition for a tax deed under Section 6-1.1-25-4.5, so that they had

       substantially complied with the notice requirements. The Jenners argue that

       they were entitled to the same treatment as a bona fide purchaser for value; that

       they consequently were not required to provide notice to Crown Castle; and

       that the trial court erred when it determined that the Jenners lacked that status

       and thus concluded that the Jenners had failed to provide notice and that their

       deed was void. The Jenners also argue that the trial court erred in giving any

       weight to the sign on the fence next to the tower, and that the trial court had

       thereby abused its discretion when it concluded that the Jenners had sufficient

       information from which to identify Crown Castle and provide notice of the tax

       deed petition.


        Nature of Bona Fide Purchasers and Tax-Sale Purchasers
[14]   Because the Jenners premise their appeal in large part upon whether they are

       entitled to treatment as bona fide purchasers for value, the resolution of the


       Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017   Page 7 of 27
       appeal must account for the nature of a bona fide purchaser for value and the

       rights of a tax-sale purchaser.


[15]   A bona fide purchaser for value is entitled to protection from interest-holders

       outside the chain of title as a matter of equity because she or he has made a

       purchase “for a valuable consideration without notice of a legal defect.” Keybank

       Nat’l Ass’n v. NBD Bank, 699 N.E.2d 322, 327 (Ind. Ct. App. 1998) (emphasis

       added). “A record outside the chain of title does not provide notice to bona fide

       purchasers for value.” Id. That is, a bona fide purchaser for value without notice

       of a competing interest in the chain of title is an innocent buyer, and thus is

       entitled to protection against those interests not readily discoverable through a

       search through a given chain of title.


[16]   The very nature of a tax sale means that a tax-sale purchaser cannot be a bona

       fide purchaser for value. Purchase of an interest in property through a tax sale is

       inherently made with notice of a significant impediment to clear title: namely,

       that a lien arose because tax payments for the property at issue were delinquent.

       Also unlike a bona fide purchaser for value, the tax-sale purchaser is not

       purchasing title to the land in a standard market transaction. She or he is

       instead paying the outstanding tax owed on the land and receives in exchange a

       certificate evidencing the sale. “After the expiration of the redemption period

       … but not later than three (3) months after the expiration of the period of

       redemption,” a tax sale purchaser may “file a verified petition” seeking the

       issuance of a tax deed by the court in which the judgment of sale was entered.

       I.C. § 6-1.1-25-4.6(a).

       Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017     Page 8 of 27
[17]   Thus, in exchange for paying the past-due taxes, the tax-sale purchaser does not

       as a matter of right gain title to the land. Rather, usually by risking pennies on

       the dollar relative to the fair-market value of the land, the tax-sale purchaser

       obtains a legal right to later seek a deed to the land—if the tax-sale purchaser

       complies with the requirements set forth by the Indiana General Assembly in

       the tax-sale statutes. See, e.g., I.C. § 6-1.1-25-4.5 (setting forth the numerous

       elements that must be satisfied for a tax-sale purchaser to obtain a valid tax

       deed).


[18]   Thus, a tax-sale purchaser is not only not a bona fide purchaser for value, the

       tax-sale purchaser has not acquired any kind of title at all by paying the

       redemption amount due at the tax sale. Rather, the right obtained through a

       tax sale is to engage in legal proceedings that might result in obtaining a tax

       deed to the land. Those proceedings might also result in a full or partial refund

       of the money paid at the tax sale if a competing interest holder redeems the

       property. I.C. §§ 6-1.1-25-4.6(h) & (i). Or, if the notice requirements of the

       statute are not satisfied, the proceedings may result in the tax-sale purchaser

       losing both the opportunity to obtain a tax deed and the money paid at the tax-

       sale. I.C. § 6-1.1-25-4.6(j) (providing that “the court shall not order the return

       of the purchase price or any part of the purchase price if: (1) the purchaser of

       the certificate of sale … has failed to provide notice or has provided insufficient

       notice as required by section 4.5 of this chapter” where the sale is otherwise

       valid).




       Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017    Page 9 of 27
[19]   This speculative approach in which a tax-sale purchaser buys not title itself, but

       a chance to obtain title (generally by means of a lien), is a common one among

       our sister States. Patton and Palomar on Land Titles § 490 (3d ed. 2003). “Many

       states require strict compliance with the statutory tax sale procedure in order to

       effectively divest the title of the tax debtor and bar the right of redemption.” Id.

       And because tax sales result in forfeiture, which the law disfavors generally,

       Gates v. Houston, 897 N.E.2d 532, 536 (Ind. Ct. App. 2008) (citing Skendzel v.

       Marshall, 261 Ind. 226, 231, 301 N.E.2d 641, 644 (1973)), “courts generally

       strictly construe the applicable statutes in favor of the landowner.” Patton and

       Palomar on Land Titles § 490. In other words, the tax-sale purchaser is gambling

       that the money paid at a tax sale and her or his efforts to comply with the

       applicable statutes, taken together with prior interest-holders’ apparent lack of

       concern for or inability to continue their ownership of property, will result in

       fee simple ownership of land. While this gamble may routinely pay off for tax-

       sale purchasers, the purchase of a chance to own a property interest at a tax sale

       is a far cry from the type of purchase made by a bona fide purchaser for value.


                          Construction of the Tax Sale Statutes
[20]   Keeping in mind the nature of a tax sale as compared to a sale of property to a

       bona fide purchaser for value, an examination of the statutory scheme

       underlying the Jenners’ arguments is in order.


[21]   Seeking to step into the shoes of a bona fide purchaser for value, the Jenners

       raise issues of statutory construction with respect to the tax-sale statute.


       Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017   Page 10 of 27
       Statutory interpretation is a pure question of law, which is reviewed de novo.

       J.D.M. v. State, 68 N.E.3d 1073, 1077 (Ind. 2017). “When interpreting a statute,

       our primary goal is to fulfill the legislature’s intent.” Day v. State, 57 N.E.3d

       809, 812 (Ind. 2016). We start with the text of the statute, giving words their

       plain meaning. ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192,

       1196 (Ind. 2016); see also I.C. § 1-1-4-1(1) (“Words and phrases shall be taken in

       their plain, or ordinary and usual, sense.”). Indeed, “[t]he best evidence of

       [legislative] intent is the language of the statute itself.” State v. Oddi-Smith, 878

       N.E.2d 1245, 1248 (Ind. 2008). Where the statute is ambiguous, we “turn to

       our canons of statutory construction” and seek “to resolve the ambiguity in the

       manner most consistent with the discernible legislative intent.” Consumer

       Attorney Servs., P.A. v. State, No. 49S05-1703-PL-161, slip op. at 5 (Ind. Mar. 21,

       2017); see also Day, 57 N.E.3d at 813.


[22]   However, before applying any rules of construction, we must first “determine

       whether the Legislature has spoken clearly and unambiguously on the point in

       question.” City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007). “When a

       statute is clear and unambiguous, we need not apply any rules of construction

       other than to require that words and phrases be taken in their plain, ordinary,

       and usual sense.” Id. It is only when there is ambiguity—“when a statute is

       susceptible to more than one interpretation”—that we apply other canons of

       construction. Id.


[23]   The Jenners argue that the trial court erroneously interpreted the tax-sale

       statutes because it did not afford the Jenners bona fide purchaser status for
       Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017    Page 11 of 27
purposes of the notice requirements of Section 6-1.1-25-4.5. The title conveyed

by a tax deed may be defeated if the notices required by Section 6-1.1-25-4.5(a)

“were not in substantial compliance with the manner prescribed” by statute.

I.C. § 6-1.1-25-16(7). As to which parties may be entitled to notice, our statutes

provide:


        Except as provided in subsection (d), a purchaser or the
        purchaser's assignee is entitled to a tax deed to the property that
        was sold only if:


        ***


        (3) not later than six (6) months after the date of the sale:


        (A) the purchaser or the purchaser's assignee…


        gives notice of the sale to the owner of record at the time of the
        sale and any person with a substantial property interest of public
        record in the tract or item of real property.


Ind. Code § 6-1.1-25-4.5(a). As used in the statute, “a substantial property

interest of public record” is defined to mean an “interest in a tract possessed by

a person and recorded in the office of a county recorder or available for public

inspection in the office of a circuit court clerk no later than the hour and date

the [tax] sale is scheduled to commence.” I.C. § 6-1.1-24-1.9. Regarding

parties in possession of land who have not recorded their interest, the statute

provides, “The notice [to be sent to other interest-holders] under this section …

[is] not required for persons in possession not shown in the public records.”

Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017      Page 12 of 27
       I.C. § 6-1.1-25-4.5(i). The statute does not identify a tax-sale purchaser as

       holding status equivalent to a bona fide purchaser for value, and does not state

       that a tax-sale purchaser need satisfy only the limited requirements applicable to

       a bona fide purchaser for value.


[24]   The Jenners notified all parties whose interests were recorded in the chain of

       title for the property—that is, they provided notice to the same extent to which

       bona fide purchasers of land for value are considered to have notice of prior

       interests. The Jenners acknowledge that they were not in fact bona fide

       purchasers, but suggest that it is reasonable they be afforded that treatment, and

       thus request that their notice obligation under the tax-sale statutes be construed

       in this manner.


[25]   The General Assembly spoke clearly and unambiguously in the language of

       Subsection 6-1.1-25-4.5(a). Our Legislature stated that a party seeking a tax

       deed must provide notice to “any person with a substantial property interest of

       public record” (emphasis added). “Any” means exactly what it says: “one

       indifferently out of more than two”; “one, some, or all indiscriminately of

       whatever quantity”; “one, no matter what one.” Any, Webster’s Third New

       International Dictionary of the English Language Unabridged (2002).


[26]   The plain language of the notice provisions of the tax-sale statutes is dispositive

       here. The notice provisions make clear that the Jenners were required to

       provide notice to Crown Castle: notice must be provided to any person who

       holds a substantial interest of public record. See I.C. § 6-1.1-25-4.5(a). The


       Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017   Page 13 of 27
       statute makes no provision for bona fide purchaser treatment of a tax deed

       petitioner, and makes no allowance for the failure of a tax-sale purchaser to find

       a recorded interest that lies outside the chain of title. Nor does the statute

       contemplate a hierarchy of recorded interests, such that some property interests

       are somehow “more” or “really” recorded and thus deserving of notice,

       whereas others are not. See I.C. § 6-1.1-24-1.9.


[27]   Indeed, that the Legislature meant “any” to mean “all” and “every” here,

       without regard to whether the property interest was recorded within a parcel of

       land’s chain of title, is underscored by the Legislature’s drafting of the tax-sale

       statute without using the phrase “chain of title.” The Indiana General

       Assembly has used exactly that phrase in the marketable title statute, I.C. § 32-

       20-3-1, and this Court has recognized that one effect of the marketable title

       statute is that competing chains of title may result in the supersession of one

       line of property interests over another. See, e.g., Roberts v. Feitz, 933 N.E.2d 466,

       476-78 (Ind. Ct. App. 2010) (concluding that a party’s title was superior to an

       older, parallel chain of title, based in part upon the precision of the legal

       description of the land).


[28]   Yet the General Assembly did not use “chain of title” in the tax-sale statute.

       The Legislature crafted the statute to require that tax sale purchasers provide

       notice to any person with a substantial, publicly recorded interest as that is

       defined in Section 6-1.1-24-1.9. This requirement reflects the very different

       status of a tax-sale purchaser vis-à-vis a bona fide purchaser for value, is



       Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017   Page 14 of 27
       consonant with the speculative nature of the market created by the tax-sale

       statutory scheme, and comports with Indiana law holding forfeiture in disfavor.


[29]   The Jenners note that a requirement of notice to any person with a substantial

       interest in the property of public record places a significant burden upon tax-

       sale purchasers: if notice must be provided to any person with a substantial

       property interest of public record whether the person’s interest lies inside or

       outside the chain of title, then tax-sale purchasers must search every document

       in the recorder’s office to be sure that they had provided notice to every person

       with a recorded interest. Yet a tax-sale purchase is a gamble, and, given the

       ante i.e. the low purchase price at a tax sale—often just pennies on the dollar

       relative to the fair market value of a subject property—the Legislature balanced

       the tax-sale purchaser’s investment against the risk of a forfeiture by the existing

       interest holders. The Legislature thus intended to impose a greater burden

       upon tax-sale purchasers, thereby safeguarding to a significant degree existing

       property owners’ rights to their land. Requiring a tax-sale purchaser to search

       outside the chain of title—even if it means searching thousands of records in the

       county recorder’s office—is one of the safeguards created by the statute.


[30]   Accordingly, there was no abuse of discretion in the trial court’s conclusion that

       the statute required the Jenners’ tax deed be declared void, and thus there was

       no error in the trial court’s decision to grant Crown Castle’s motion to set aside

       the judgment.




       Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017   Page 15 of 27
                                             Whither Notice?
[31]   The plain language of the tax-sale statute is sufficient on its own to resolve this

       appeal. But because the trial court also held that the Jenners were on inquiry

       notice of Crown Castle’s interest, a matter that seems likely to recur in future

       litigation, this facet of the trial court’s order will also be addressed.


[32]   The Jenners contend that the trial court abused its discretion when it found that

       they were on inquiry notice, by virtue of a sign posted on a fence surrounding

       the cellular tower on the property, of Crown Castle’s recorded interest in the

       property. The trial court erred on this point, because holding that the Jenners

       were somehow required to make a personal, visual inspection of the land runs

       counter to the provisions of the tax-sale statute.


[33]   The statute provides, “The notice [to be sent to other interest-holders] under

       this section … [is] not required for persons in possession not shown in the

       public records.” I.C. § 6-1.1-25-4.5(i). That is, the tax-sale statute exposes tax-

       sale purchasers to challenges from parties with recorded claims to the

       property—but there is no notice requirement to those who possess the property

       without a recorded interest. The tax-sale statutes do not require notice to

       parties in physical possession unless those parties hold a recorded interest in the

       land.


[34]   Thus, imputing an inspection requirement where there is no notice requirement

       creates a legal requirement that is not present in the statute. It also runs counter

       to another of the goals of the tax-sale statute: to expedite the payment of past-

       Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017    Page 16 of 27
       due taxes, allowing Indiana’s state and local governments to collect money they

       are owed and, presumably, to recommence collecting property tax on a given

       parcel. The plain language of the statute precludes the creation of an inspection

       requirement because the statute expressly excludes from the tax-sale purchaser’s

       duties the necessity of providing notice to parties in possession with unrecorded

       interests—that is, parties whose interest in the land can be discovered only by a

       physical inspection.


[35]   Simply put, whether a tax-sale purchaser has notice of a physical occupant of

       the land is beside the point in this case. The statute delineates the extent of a

       tax-sale purchaser’s obligation to provide notice to other interest-holders in the

       property. In doing so, the statute expressly declines to impose a requirement to

       notify parties in possession without a substantial interest of public record.

       Neither this court nor the trial court are in positions to impose an inspection

       requirement upon tax-sale purchasers who, as the Jenners note, may be

       trespassing upon the land prior to the issuance of a tax deed. To the extent the

       trial court’s order would impose such a requirement, that construction of the

       statute was in error.



                                                Conclusion
[36]   Because Crown Castle satisfied the statutory definition of a person with a

       substantial interest of public record in the property, it was entitled to notice

       under our tax-sale statutes, and the trial court did not err when it concluded that

       the Jenners’ failure to provide notice of their tax-deed petition required that the

       Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017   Page 17 of 27
       tax deed be declared void. There is, however, no requirement for inspection

       inherent in the statute, and thus the trial court erred when it concluded that the

       Jenners were on inquiry notice of Crown Castle’s interest. The trial court did

       not abuse its discretion when it granted Crown Castle’s motion for relief from

       judgment with respect to the issuance of the Jenners’ tax deed.


[37]   Affirmed.


       Vaidik, C.J., concurring in result with separate opinion.
       Robb, J., dissenting with separate opinion.




       Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017   Page 18 of 27
ATTORNEY FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
Jon L. Orlosky                                             CROWN CASTLE SOUTH LLC
Muncie, Indiana
                                                           Christopher S. Roberge
                                                           Elizabeth A. Roberge
                                                           Roberge Law
                                                           Carmel, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

David L. Jenner and Vickie                                 June 12, 2017
Jenner,                                                    Court of Appeals Case No.
Appellant-Petitioners,                                     53A05-1606-MI-1415
                                                           Appeal from the Monroe Circuit
        v.                                                 Court
                                                           The Honorable E. Michael Hoff,
Bloomington Cellular Services,                             Judge
Inc.,                                                      Trial Court Cause No.
Appellee-Respondent,                                       53C01-1409-MI-1703


Crown Castle South LLC,
Appellee-Intervenor




Vaidik, Chief Judge, concurring in result.




Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017               Page 19 of 27
[1]   I join Judge Bailey in voting to affirm the trial court’s decision, but I

      respectfully disagree with his interpretation of Indiana Code sections 6-1.1-25-

      4.5 and -4.6.


[2]   Those statutes require a tax-sale purchaser seeking a tax deed to provide notice

      to “the owner of record at the time of the sale and any person with a substantial

      property interest of public record in the tract or item of real property.” Judge

      Bailey reads this language to require notice to any person who has recorded an

      interest in the subject property, even if the interest is recorded “outside the

      chain of title” and the only way for the tax-sale purchaser to discover the

      interest at the recorder’s office is to “search every document” in the office. Slip

      op. at 15 (emphasis added). He concludes that this is a “safeguard” for existing

      property owners, intentionally created by the General Assembly. Id. I cannot

      agree.


[3]   “The purpose of the tax sale statute is obvious—to collect delinquent property

      taxes.” Ransburg v. Kirk, 509 N.E.2d 867, 876 (Ind. Ct. App. 1987), reh’g denied.

      But if the only way for tax-sale purchasers to achieve certainty and

      predictability is to carefully review every single document in the relevant

      recorder’s office, tax-sale purchases will become much more risky and

      expensive, and the collection of delinquent taxes will become much more

      difficult. Therefore, I simply cannot conclude that the legislature, which is well

      aware of the volume of documents on file at the recorder’s offices in this state,

      intended to establish such a requirement.



      Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017    Page 20 of 27
[4]   Instead, I interpret the statutes, as does Judge Robb, to mean that the holder of

      a recorded interest is entitled to notice only if the tax-sale purchaser knows of

      the recording or would become aware of it in the exercise of reasonable

      diligence. Reasonable diligence includes performing all available index and

      electronic searches for recorded documents (using property-specific and party-

      specific search criteria) and conducting an in-person visit to the property. If the

      visit to the property provides the tax-sale purchaser with new information (such

      as names of potential interest holders), additional searching for recorded

      documents may be warranted.


[5]   Here, there is no evidence that the Jenners had independent, existing

      knowledge of the recording of Crown Castle’s interests. Moreover, Crown

      Castle concedes that the recordings were not discoverable—at least at the times

      relevant to this case—using the available search options through the Monroe

      County Recorder’s Office. The attorney for the title company hired by the

      Jenners signed an affidavit indicating that a name search was the company’s

      only option, and the only name available to the title company (the only relevant

      name in the “chain of title”) was Bloomington Cellular. Of course, advances in

      recording, recordkeeping, and search technology have made it possible in many

      counties to find recorded interests in a particular tract—even those recorded

      “outside” the traditional chain of title—simply by using the legal description,

      the address, or the Tax/Parcel ID. Indeed, a search today for the Property’s

      Tax/Parcel ID on the Doxpop database for Monroe County quickly leads one

      to Crown Castle’s recorded interest. However, because the title company was


      Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017   Page 21 of 27
      unable to find Crown Castle’s recordings, and because Crown Castle does not

      contend that the title company should have been able to do so, we must assume

      that, back in 2014, the only way to search for the recordings was a traditional

      chain-of-title search by name.


[6]   That leaves an in-person visit to the Property, which is where I part ways with

      both of my colleagues. On this point, the trial court ruled as follows:


               In the present case, a physical view of the Vernal Pike Property
               would have disclosed Crown Castle’s interests in the property.
               Consequently, knowledge of the cell tower and signage was
               imputed to [the Jenners] at the time of the tax sale. The cell
               tower and signage were sufficient to disclose Crown Castle had a
               substantial property interest in the property. And, with that
               knowledge, the Jenners could have searched the Monroe
               County Recorder’s public records available for public
               inspection through the Internet on DoxPop where they are
               maintained for the Monroe County Recorder. Indeed, a simple
               name search for Crown Castle would have revealed Crown
               Castle’s Lease and License.


      Appellants’s App. Vol. II p. 28 (emphasis added). In short, the trial court found

      that a visit to the Property would have revealed Crown Castle’s name and that a

      follow-up recorder’s office search for Crown Castle’s name would have revealed

      its recordings. I defer to the trial court’s factual findings in this regard, and I

      vote to affirm its decision on this ground.2




      2
       In disagreeing with the trial court on this issue, Judge Bailey reads the trial court’s order as concluding that
      Crown Castle would have been entitled to notice simply by virtue of its possession of the property, as

      Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017                            Page 22 of 27
evidenced by the sign, even if its interest had been unrecorded. See slip op. at 16 (“[T]here is no notice
requirement to those who possess the property without a recorded interest. The tax-sale statutes do not
require notice to parties in physical possession unless those parties hold a recorded interest in the land.”) &
17 (“[T]he [tax-sale] statute expressly excludes from the tax-sale purchaser’s duties the necessity of providing
notice to parties in possession with unrecorded interests[.]”). That is not how I read the trial court’s order.
As I see things, the trial court ruled that Crown Castle was entitled to notice precisely because its interest was
recorded—a recording the Jenners would have discovered if they had looked at the sign and then gone to the
recorder’s office and conducted a search for the name on the sign.

Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017                            Page 23 of 27
                                                    IN THE
           COURT OF APPEALS OF INDIANA

      David L. Jenner and Vickie                                   Court of Appeals Case No.
      Jenner,                                                      53A05-1606-MI-1415

      Appellants-Petitioners,

               v.

      Bloomington Cellular Services,
      Inc.,
      Appellee-Respondent,

              and


      Crown Castle South LLC,
      Appellee-Intervenor.




      Robb, Judge, dissenting.


[7]   I agree with Judge Bailey that the sign posted on the property did not put the

      Jenners on inquiry notice of Crown Castle’s interest and therefore I agree the

      Jenners’ tax deed is not void on this basis.3 See slip op. at ¶ 35. For this reason,




      3
       Judge Vaidik would affirm on the basis the Jenners should have known to search Crown Castle’s interest
      due to the sign. Regardless of whether the statute imposes an inspection requirement, I do not believe the
      evidence adduced in this case supports the notion that even if the Jenners had inspected the property, the sign

      Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017                         Page 24 of 27
      it is necessary for me to consider whether the Jenners gave the appropriate

      notice of their tax sale purchase, and on that point, I disagree with Judge Bailey

      that the Jenners’ failure to uncover Crown Castle’s interest and provide it notice

      defeats their tax deed.


[8]   I acknowledge Subsection 6-1.1-45-4.5(a)(3) says the tax sale purchaser must

      give notice to “any person with a substantial property interest of public record,”

      and that on its face, this would require notice to Crown Castle in this case. As

      Judge Bailey says, however, a strict interpretation of the statute could require

      “searching thousands of records in the county recorder’s office” in order to

      comply. Slip op. at ¶ 29. The statutory language itself may be straightforward,

      but the manner of complying under this interpretation is anything but. Even

      accepting that a tax sale purchase is a “gamble,” see id., imposing a strict

      interpretation of the statute would mean that successfully obtaining a tax deed

      is all luck and no skill. I find it difficult to accept the Legislature would have

      drafted a statute imposing a basically impossible requirement. This is especially

      so considering section 6-1.1-25-16(7) says that a person may defeat the title

      conveyed by a tax deed only if, among other things, the required notices were

      not in substantial compliance with the statutory requirements of section 6-1.1-25-

      4.5. For this reason alone, I would interpret the statute to require tax sale




      was sufficient to put them on notice that additional entities beyond the chain of title might be entitled to
      statutory notice of the tax sale.

      Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017                            Page 25 of 27
      purchasers to provide notice to persons who they know or with the exercise of

      reasonable diligence should have known have a substantial property interest.


[9]   As to Judge Vaidik’s point that advances in technology have in some

      circumstances made a record search easier, I acknowledge this is true and

      further acknowledge that if the Jenners purchased the property at a tax sale

      today, they would be expected to provide notice to Crown Castle. However,

      when the statute was enacted in 1989, searching documents online was not

      possible. What’s more, as it stands now, searching documents online may not

      be possible in every county, or it may be possible only in a limited way. This

      further supports my view that it is unlikely the Legislature enacted this statute

      with the intent for a tax sale purchaser to have to search every record in the

      recorder’s office to assure he or she has found every recorded property interest.

      Returning to Judge Bailey’s analogy of purchasing at a tax sale to gambling, I

      do not necessarily disagree that tax sale purchasers are taking a risk. But

      according to Judge Bailey’s interpretation of the statute, tax sale purchasers are

      taking an even bigger risk than a gambler walking into a casino. In a casino,

      the rules are the same at every table for any given game. In this “game,”

      however, the rules are different depending on the county in which the property

      is located.4 Thus, tax sale purchasers are not taking a gamble that they followed




      4
        Recorded documents from thirty-nine counties, including Monroe, are available on Doxpop, and a search
      by Tax/Parcel ID is possible for thirty-eight of those counties. Indiana counties use court records services
      other than Doxpop, so it is possible a search by Tax/Parcel ID may be conducted online in more than the
      thirty-eight counties allowing such a search through Doxpop. However, it does not appear possible at all in,
      for example, Hamilton County, which uses Doxpop but does not allow searching by Tax/Parcel ID, and

      Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017                        Page 26 of 27
       the tax sale statutes correctly; they are taking a gamble that they can follow the

       statutes. As Judge Vaidik points out, that uncertainty would defeat the purpose

       of the statute – to collect delinquent taxes.


[10]   There will likely be some time in the future when the records in every county

       will be on equal footing and even documents recorded outside the chain of title

       will reliably and easily be available to tax sale purchasers. Until such time,

       however, I do not believe the Legislature intended what Judge Bailey’s opinion

       says – that even when a title company does not find a recorded interest, an

       average citizen is nonetheless expected to in order to procure a tax deed.

       Therefore, I disagree with the ultimate conclusion of the majority—reached

       through different means, but nonetheless agreeing on the outcome—that the

       trial court should be affirmed and the tax deed set aside.


[11]   I would reverse the trial court’s judgment granting Crown Castle’s motion for

       relief from judgment.




       which does not seem to have any other means of conducting such a search. Other counties have varying
       access to and means of conducting online searches.

       Court of Appeals of Indiana | Opinion 53A05-1606-MI-1415 | June 12, 2017                    Page 27 of 27
