ATTORNEYS FOR PETITIONER:                     ATTORNEY FOR RESPONDENT:
BENJAMIN A. BLAIR                             JESSICA R. GASTINEAU
DANIEL R. ROY                                 SPECIAL COUNSEL - TAX LITIGATION
DAVID A. SUESS                                OFFICE OF CORPORATION COUNSEL
FAEGRE BAKER DANIELS LLP                      Indianapolis, IN
Indianapolis, IN



                               IN THE
                         INDIANA TAX COURT                                      FILED
                                                                            Aug 16 2019, 4:50 pm

CONVENTION HEADQUARTERS                         )                          CLERK
                                                                      Indiana Supreme Court
HOTELS, LLC,                                    )                        Court of Appeals
                                                                           and Tax Court
                                                )
      Petitioner,                               )
                                                )
             v.                                 ) Cause No. 19T-TA-00021
                                                )
MARION COUNTY ASSESSOR,                         )
                                                )
      Respondent.                               )


                    ORDER ON RESPONDENT’S MOTION TO DISMISS

                                  FOR PUBLICATION
                                   August 16, 2019

WENTWORTH, J.

      Convention Headquarters Hotels, LLC (CHH) has challenged the 2010

assessment of its real property. The Marion County Assessor has moved to dismiss

CHH’s entire appeal or alternatively one of the six claims presented in its Petition for

Judicial Review (“Petition”) due to a variety of alleged procedural failures. Upon review,

the Court denies the Assessor’s Motion.

                                          FACTS

      CHH owns the JW Marriot Hotel located in downtown Indianapolis, Center
Township, Marion County, Indiana. (Pet’r Pet. Judicial Review (“Pet’r Pet.”) ¶ 15, Ex. A

at 1.) On October 13, 2010, the Assessor mailed a Form 11 to CHH, increasing the

assessment of its then partially complete hotel from $18,479,100 to $86,987,100 for the

2010 tax year. (See Pet’r Pet. ¶¶ 16-20.) CHH subsequently filed a “Notice to Initiate an

Appeal” (“Form 130”) with the Marion County Property Tax Assessment Board of Appeals

(PTABOA). (Pet’r Pet. ¶ 22, Ex. A at 3-4.) The PTABOA took no action on CHH’s Form

130. (See Pet’r Pet. ¶ 23.)

       In May of 2017, CHH’s attorneys received an e-mail from the Assessor’s office,

which indicated that “various properties in downtown Indianapolis were not assessed as

partially complete.” (See Pet’r Resp. Opp’n Resp’t Mot. Dismiss (“Pet’r Resp. Br.”) at 2,

12.) Believing that its property was assessed inequitably, CHH transitioned its appeal to

the Indiana Board on June 6, 2017, by filing a “Petition for Review of Assessment Before

the [Indiana Board]” (“Form 131 petition”).1 (See Pet’r Pet. ¶ 24, Ex. A at 2.) CHH claimed

in its Form 131 petition that its 2010 assessment violated “the Constitution of the United

States of America, including but not limited to the Equal Protection Clause and Due

Process Clause of the Fourteenth Amendment, and the Constitution of the State of

Indiana, including but not limited to Article X, Section 1.” (Pet’r Pet., Ex. A at 2.) The

Indiana Board, however, did not conduct a hearing on CHH’s Form 131 petition. (See

Pet’r Pet. ¶¶ 9-10.)

       On May 1, 2018, CHH filed its first direct appeal with the Court pursuant to Indiana



1
   Indiana Code § 6-1.1-15-1 allowed CHH to pursue its appeal with the Indiana Board without
first receiving a final determination from the PTABOA. See IND. CODE § 6-1.1-15-1(o) (2017)
(repealed 2017) (indicating that when a property tax assessment board of appeals fails to conduct
a hearing on an appeal within 180 days of its filing, the appeal may proceed directly to the Indiana
Board).
                                                 2
Code § 6-1.1-15-5(g), claiming its 2010 assessment violated the Equal Protection Clause

of the U.S. Constitution, its civil rights under 42 U.S.C. § 1983, the Property Taxation and

Equal Privileges and Immunities Clauses of Indiana’s Constitution, and Indiana’s market

value-in-use standard.     See Convention Headquarters Hotels, LLC v. Marion Cty.

Assessor (Convention Headquarters I), 119 N.E.3d 245, 246-47 (Ind. Tax Ct. 2019). On

January 25, 2019, the Court dismissed CHH’s appeal for lack of subject matter

jurisdiction, concluding it was filed before the maximum time for the Indiana Board to give

notice of its final determination elapsed. See id. at 250. As a result, the matter was

remanded to the Indiana Board for action consistent with the Court’s opinion. Id.

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

among other things, that its 2010 assessment violated the Due Process Clause of the

U.S. Constitution as well as its civil rights under 42 U.S.C. § 1983. See Convention

Headquarters Hotels, LLC v. Marion Cty. Assessor (Convention Headquarters II), 126

N.E.3d 80, 81 (Ind. Tax Ct. 2019). On May 22, 2019, the Court dismissed the appeal for

lack of subject matter jurisdiction because CHH had once again filed the appeal before

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

See id. at 82-84. Accordingly, the Court remanded the matter to the Indiana Board for

action consistent with its opinion. See id. at 84.

       On June 28, 2019, after the maximum time for the Indiana Board to give notice of

its final determination elapsed, CHH filed its third direct appeal with the Court. (See Pet’r

Pet. ¶¶ 11, 13.) CHH’s third direct appeal alleged, just as its first and second direct

appeals, that the 2010 assessment of its real property violated the Equal Protection and

Due Process Clauses of the U.S. Constitution, its civil rights under 42 U.S.C. § 1983



                                             3
(“1983 Claim”), the Property Taxation and Equal Privileges and Immunities Clauses of

Indiana’s Constitution, and Indiana’s market value-in-use standard. (See, e.g., Pet’r Pet.

¶¶ 44-96.) On July 18, 2019, the Assessor filed a Motion to Dismiss. On August 5, 2019,

after the matter was fully briefed, the Court took the Assessor’s Motion under advisement.

Additional facts will be supplied when necessary.

                                  LAW AND ANALYSIS

       The Assessor maintains that CHH’s appeal should be dismissed “for [various]

procedural failures[.]” (Resp’t Mot. Dismiss.) More specifically, the Assessor asks the

Court to dismiss CHH’s appeal with prejudice because it did not include a request that

the Indiana Board prepare a certified copy of the administrative record in its Petition. (See

Resp’t Corrected Br. Supp. Mot. Dismiss (“Resp’t Br.”) at 2-6.) Alternatively, the Assessor

requests that the Court dismiss CHH’s 1983 Claim pursuant to Indiana Trial Rule 12(B)(1)

and 12(B)(6) because a) it was not timely filed; b) CHH failed to file a tort claim notice;

and c) CHH failed to include the 1983 Claim in its Form 131 petition to the Indiana Board.

(See Resp’t Br. at 6-10.)

         I. Failure to request a certified copy of the administrative record

       The Assessor contends that to invoke this Court’s jurisdiction CHH needed to

include a request in its Petition that the Indiana Board prepare a certified copy of the

administrative record as required by Indiana Tax Court Rule 3(F). (See Resp’t Br. at 2-

6.) The Assessor explains that CHH’s failure to do so places the Court at a disadvantage

by preventing it from “easily distinguish[ing] between an appeal brought after all evidence

has been presented at trial, an appeal brought to avoid trial on the eve of trial, an appeal

brought to delay scheduled depositions, or an appeal brought when a petitioner has not



                                             4
taken any action to move forward with its case.” (Resp’t Br. at 4.) The Court finds the

Assessor’s arguments unpersuasive.

       Indiana Tax Court Rule 3(F) requires the petition in an appeal from a final

determination of the Indiana Board to include a request that the Indiana Board prepare a

certified copy of the agency record. Ind. Tax Court Rule 3(F). Tax Court Rule 3(F),

however, does not apply in this case because CHH is not appealing from a final

determination of the Indiana Board. (See Pet’r Pet. ¶¶ 8-13.) Instead, CHH initiated its

appeal under Indiana Code § 6-1.1-15-5(g), which confers jurisdiction to the Tax Court

when the Indiana Board fails to give notice of its final determination before its maximum

time elapses. See IND. CODE § 6-1.1-15-5(g) (2019) (amended 2019); see also IND. CODE

§ 33-26-3-2 (2019) (stating that the Tax Court has “any [] jurisdiction conferred by

statute”).

       Neither the Tax Court Rules nor the statutory authority regarding the initiation of

this appeal require that a request for a copy of the certified record be made. See, e.g.,

I.C. § 6-1.1-15-5(g); IND. CODE § 6-1.1-15-6(a) (2019) (providing that “[e]xcept with

respect to a petition filed under section 5(g) of this chapter, if a petition for judicial review

is initiated by a person under section 5 of this chapter, the Indiana board shall prepare a

certified record of the proceedings related to the petition”) (emphasis added) (amended

2019). Moreover, the certified record would be superfluous under the circumstances that

confer jurisdiction under Indiana Code § 6-1.1-15-5(g), which states that “the tax court

shall determine the matter de novo.”          I.C. § 6-1.1-15-5(g).     See also Convention

Headquarters I, 119 N.E.3d at 249 n.4 (providing that when this Court “reviews a matter

de novo, it is not bound by the issues or evidence presented at the administrative level”)



                                               5
(citation omitted). Accordingly, the Court will not dismiss CHH’s appeal on this basis.

                                    II. The 1983 Claim

       As just mentioned, the Assessor also contends that CHH’s 1983 Claim should be

dismissed because a) it was not timely filed; b) CHH did not file a tort claim notice; and c)

CHH did not include the 1983 Claim in its Form 131 petition to the Indiana Board. (See

Resp’t Br. at 7-10.) CHH responds that none of the Assessor’s arguments are supported

by the applicable law or the relevant facts. (See Pet’r Resp. Br. at 8-23.)

                                      A. Timely filed

       First, the Assessor contends that CHH’s 1983 Claim is time-barred because it was

filed years after the applicable statute of limitations expired. (See Resp’t Br. at 7-8 (citing

Devbrow v. Kalu, 705 F.3d 765, 767 (7th Cir. 2013) (indicating a two-year statute of

limitations applies)).)   More specifically, the Assessor asserts that CHH’s Petition

indicates the 1983 Claim accrued on the date CHH received the Form 11 that increased

its 2010 assessment, i.e., October 13, 2010. (See Resp’t Br. at 7-8 (citing Pet’r Pet. at 3-

4).) Because CHH did not file the 1983 Claim with the Court until May 1, 2018, the

Assessor contends it was not timely and should be dismissed. (See Resp’t Br. at 8.)

       Both parties agree that Indiana’s statute of limitations for personal injury claims

applies for purposes of determining the applicable statute of limitations here. (Compare

Resp’t Br. at 8 with Pet’r Resp. Br. at 9-10.) See also, e.g., Wallace v Kato, 549 U.S. 384,

387 (2007) (providing that “federal law looks to the law of the State in which the cause of

action arose” to determine the statute of limitations for 42 U.S.C. § 1983 claims); accord

Sellars v. Perry, 80 F.3d 243, 245 (7th Cir. 1996). The applicable statute of limitations in

Indiana is two-years after the cause of action accrues. See IND. CODE § 34-11-2-4(a)



                                              6
(2019). Although Indiana law determines the applicable statute of limitations, federal law

determines when a Section 1983 claim, like the one at issue here, accrues. Sellars, 80

F.3d at 245. To that end, a Section 1983 claim ordinarily accrues when a petitioner

“knows or has reason to know of the injury that is the basis of his action.” Id. Nonetheless,

“a statute of limitations can be tolled based upon equitable principles, including the

discovery rule.” See Dique v. New Jersey State Police, 603 F.3d 181, 185 (3d Cir. 2010)

(citation omitted). See also Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 688 (Ind.

Ct. App. 2006) (indicating that the discovery rule applies to all tort cases). “The discovery

rule provides that a cause of action accrues when a party knows or in the exercise of

ordinary diligence could discover, that . . . an injury had been sustained as a result of the

tortious act of another.” Id. at 687-88 (citation omitted). “The rationale underlying the rule

suggests that it is ‘inconsistent with our system of jurisprudence to require a claimant to

bring his cause of action in a limited period in which, even with due diligence, he could

not be aware a cause of action exists.’” Id. at 688 (citation omitted).

       In the case at bar, the Assessor alleges that CHH’s injury accrued on the date it

received the Form 11 notice increasing its 2010 assessment, but the Assessor has not

persuasively disputed CHH’s assertion that it did not know or have reason to know that

its equal protection and due process rights were violated until it received the e-mail from

the Assessor’s office in May of 2017 that revealed new facts. (Compare Pet’r Resp. Br.

at 2, 11-13 (explaining how CHH learned of the alleged injury) with Resp’t Reply Supp.

Mot. Dismiss (“Resp’t Reply Br.”) at 2 (suggesting implicitly that CHH should have combed

through publicly available information regarding other taxpayers’ assessments upon

receiving its Form 11 to discover the alleged injury).) Therefore, the Court finds that the



                                              7
discovery rule applies and the two-year statute of limitations for CHH’s 1983 Claim began

to run in May 2017, not October 2010. This finding, however, does not resolve this issue

because CHH asserts that the 1983 Claim presented in its third direct appeal is timely

under the Journey’s Account Statute.2 (See Pet’r Resp. Br. at 13-17.)

       The Journey’s Account Statute provides:

          (a) This section applies if a plaintiff commences an action and:

              (1) the plaintiff fails in the action from any cause except
                  negligence in the prosecution of the action;

              (2) the action abates or is defeated by the death of a party; or

              (3) a judgment is arrested or reversed on appeal.

          (b) If subsection (a) applies, a new action may be brought not later
              than the later of:

              (1) three (3) years after the date of the determination under
                  subsection (a); or

              (2) the date an action could have been commenced under the
                  statute of limitations governing the original action;

          and be considered a continuation of the original action commenced
          by the plaintiff.

IND. CODE § 34-11-8-1 (2019). The purpose of this Statute “‘is to provide for continuation

when a plaintiff fails to obtain a decision on the merits for some reason other than his own

neglect and the statute of limitations expires while his suit is pending.’”      Munoz v.

Woroszylo, 29 N.E.3d 164, 168 (Ind. Ct. App. 2015) (citation omitted). Thus, in certain

circumstances, the Statute permits a party to refile an action that has been dismissed on

technical grounds. Id. “To invoke the benefits of the [Statute], a claimant must have



2
 The Assessor has not provided a direct response to CHH’s claim. (See generally Resp’t Reply
Supp. Mot. Dismiss.)
                                             8
commenced a timely action that failed for reasons other than ‘negligence in the

prosecution.’” Eads v. Cmty. Hosp., 932 N.E.2d 1239, 1243 (Ind. 2010) (quoting I.C. §

34-11-8-1(a)). “Moreover, the decision ending the original action must not have been on

the merits[,]” and the claimant must meet all of the Statute’s conditions. Vesolowski v.

Repay, 520 N.E.2d 433, 435 (Ind. 1988) (citation omitted). “The Journey’s Account

Statute is designed to ensure that the diligent suitor retains the right to a hearing in court

until he receives a judgment on the merits.” Id. Therefore, this “broad and liberal purpose

is not to be frittered away by narrow construction.” Id.

         In this case, the facts establish that CHH, in good faith, pursued a logical course

of administrative and judicial review to redress its alleged constitutional violations. CHH’s

first two direct appeals to this Court filed in May 2018 and March 2019 were timely

because they were filed within two years of the date the 1983 Claim accrued (i.e., May

2017).     Neither of those direct appeals were dismissed for reasons amounting to

negligence in the prosecution and the dismissals were not on the merits. See, e.g., Eads,

932 N.E.2d at 1244 (providing that failing to pay the filing fee or naming the wrong party

are examples of negligence in the prosecution). See also, e.g., Irwin Mortg. Corp. v.

Marion Cty. Treasurer, 816 N.E.2d 439, 442-45 (Ind. Ct. App. 2004) (holding that a

plaintiff’s federal claims were not time-barred after it erroneously initiated an action in an

administrative forum, pursued judicial review of the agency’s decision in both the Tax

Court and Indiana Supreme Court, and then filed the same action in a court of general

jurisdiction). Furthermore, CHH filed its third direct appeal with the Court on June 28,

2019, well within the three year period required by the Journey’s Account Statute. See

I.C. § 34-11-8-1(b)(1). Therefore, under the Journey’s Account Statute, CHH’s third direct



                                              9
appeal to the Tax Court is a continuation of its two prior direct appeals to the Court, each

of which properly stated the 1983 Claim against the Assessor. Accordingly, the Court

finds no basis to dismiss CHH’s 1983 Claim under this theory because the 1983 Claim

was timely filed.

                                   B. Tort Claim Notice

       Next, the Assessor requests that the Court dismiss the 1983 Claim because CHH

failed to comply with the notice provisions of the Indiana Tort Claims Act (“ITCA”) by filing

a tort claim notice before initiating its appeal. (See Resp’t Br. at 8.) Under the ITCA, tort

claims against political subdivisions and their employees generally are barred unless

proper notice is given within 180 days after the loss occurs. See IND. CODE § 34-13-3-

8(a) (2019). Nonetheless, it is well-established that the ITCA does not apply to claims

based on 42 U.S.C. § 1983. See, e.g., Felder v. Casey, 487 U.S. 131, 134-53 (1988)

(preempting the application of Wisconsin’s notice-of-claim statute to a 42 U.S.C. § 1983

action brought in state court); Cantrell v. Morris, 849 N.E.2d 488, 506 (Ind. 2006) (stating

“the ITCA does not apply to claims based on 42 U.S.C. § 1983” (citation omitted)); Kellogg

v. City of Gary, 562 N.E.2d 685, 689-90 (Ind. 1990) (holding that pursuant to Felder, “state

notice-of-claim statutes are inapplicable to federal § 1983 litigation[,]” including the ITCA).

Consequently, the Court will not dismiss CHH’s 1983 Claim on this basis.

            C. Failure to include the 1983 Claim in the Form 131 petition

       Finally, the Assessor urges the Court to dismiss the 1983 Claim because this is a

new issue raised for the first time in its Petition to the Tax Court. (See Resp’t Br. at 8-9

(asserting under Indiana Code §§ 6-1.1-15-3(e), 6-1.1-15-4, and 6-1.1-15-5 as well as 52

I.A.C. 2-5-2, CHH was required to amend its Form 131 petition to place the 1983 Claim



                                              10
before the Indiana Board prior to presenting it to the Court).) As support, the Assessor

interprets the term “de novo” as used in Indiana Code § 6-1.1-15-5(g) in light of its location

within the property tax statutes, explaining that its location gives it a different meaning

than other de novo proceedings. (See Resp’t Br. at 9-10 (quoting I.C. § 6-1.1-15-5(g)

(emphasis added)).) (See also Resp’t Reply Br. at 1-2.)

       The plain meaning of the statutory language at issue simply states that the Tax

Court, as distinct from the Indiana Board, will conduct a de novo proceeding. See I.C. §

6-1.1-15-5(g). See also BLACK’S LAW DICTIONARY 1813 (11th ed. 2019) (defining “trial de

novo” as “[a] new trial on the entire case – that is, on both questions of fact and issues of

law – conducted as if there had been no trial in the first instance”) (emphasis added).

Here, the Assessor’s interpretation of “de novo” tortures the simplicity of the Legislature’s

command because the general procedure for property tax appeals has not occurred in an

Indiana Code § 6-1.1-15-5(g) appeal. Therefore, in cases like this one, if the Tax Court

was not assigned the duty of conducting a de novo proceeding, the petitioner would not

be afforded any opportunity to present his issues and evidence to a finder of fact.

Consequently, the Court declines to dismiss CHH’s 1983 Claim on this basis as well.

                                      CONCLUSION

       For the above-stated reasons, the Court DENIES the Assessor’s Motion to

Dismiss.

       SO ORDERED this 16th day of August 2019.



                                                  Martha Blood Wentworth, Judge
                                                  Indiana Tax Court




                                             11
Distribution:
Benjamin A. Blair, Daniel R. Roy, David A. Suess, Jessica R. Gastineau




                                         12
