ATTORNEY FOR PETITIONER:                         ATTORNEYS FOR RESPONDENT:
JESSICA R. GASTINEAU                             JEFFREY T. BENNETT
OFFICE OF CORPORATION COUNSEL                    BRADLEY D. HASLER
Indianapolis, IN                                 BINGHAM GREENEBAUM DOLL LLP
                                                 Indianapolis, IN



                               IN THE                                               FILED
                         INDIANA TAX COURT                                      Jan 11 2019, 3:15 pm

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court

MARION COUNTY ASSESSOR,                          )
                                                 )
      Petitioner,                                )
                                                 )
             v.                                  ) Cause No. 18T-TA-00026
                                                 )
STUTZ BUSINESS CENTER, LLC,                      )
                                                 )
      Respondent.                                )


                             ORDER ON RESPONDENT’S
                               MOTION TO DISMISS

                                   FOR PUBLICATION
                                    January 11, 2019

WENTWORTH, J.

      Stutz Business Center, LLC has moved to dismiss the Marion County Assessor’s

appeal, claiming that the Court lacks subject matter jurisdiction because the Assessor

failed to timely initiate his appeal and serve the petition directly on Stutz. Upon review,

the Court denies Stutz’s Motion.

                                    BACKGROUND

      On September 17, 2018, the Indiana Board of Tax Review issued a final

determination that permitted Stutz to withdraw its administrative appeal over the

Assessor’s objection. (Resp’t Corr. Br. Supp. Mot. Dismiss (“Resp’t Br.”) at 1.) (See also
Pet’r Pet. Original Tax Appeal Final Determination Ind. Bd. Tax Review (“Pet’r Pet.”) ¶¶

3-4, Attach.) On November 1, 2018, the Assessor filed a “Petition for Original Tax Appeal

of a Final Determination of the Indiana Board of Tax Review” with the Clerk of the Tax

Court challenging the Indiana Board’s final determination. (See generally Pet’r Pet.) On

the same day, the Petition was served by hand delivery on the Attorney General of

Indiana, the Chairman of the Indiana Board, the Assessor, and the two attorneys that

represented Stutz at the administrative level. (Pet’r Pet. at 5.) (See also Pet’r Resp.

Opp’n Resp’t Mot. Dismiss (“Pet’r Br.”) at 1.)

       On November 2, 2018, the Assessor provided the Clerk with a summons. (Resp’t

Br. at 2; Pet’r Br. at 1.) That same day, the Clerk mailed the summons and a copy of the

Petition to: “Stutz Business Center, LLC[;] 1036 North Capital Avenue[;] Suite C-200[;]

Indianapolis, IN 46204[,]” return receipt requested. (Resp’t Br. at 2.) On November 9,

2018, the Clerk received the return receipt. (Resp’t Br. at 2.)

       On November 21, 2018, Stutz filed a Motion to Dismiss the Assessor’s appeal for

lack of subject matter jurisdiction together with its brief in support. On December 10,

2018, after the matter was fully briefed, the Court took Stutz’s Motion under advisement.

Additional facts will be supplied when necessary.

                                           LAW

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

class of cases, is conferred upon a court by either the Indiana Constitution or statute.

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

challenges regarding the timeliness of filings may be raised by motion under Indiana Trial

Rule 12(B)(1) for lack of subject matter jurisdiction, the issues raised are “jurisdictional”



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only in the sense that they involve the statutory prerequisites to docketing an appeal in

the Tax Court.        See Packard v. Shoopman, 852 N.E.2d 927, 931 (Ind. 2006).

Consequently, challenges regarding the timeliness of filings, unlike true subject matter

jurisdiction challenges, may be waived or procedurally defaulted if not timely raised. Id.

at 929-30.

                                          ANALYSIS

        I.     Whether the Assessor timely initiated an original tax appeal?

       Stutz first argues that the Assessor’s appeal must be dismissed because he failed

to comply with all the requirements for initiating an appeal under Indiana Trial Rule 3 and

Indiana Code § 6-1.1-15-5(c). (Resp’t Br. at 3-5.) More specifically, Stutz explains that

both provisions required the Assessor to provide the Clerk with the Petition and a

summons no later than November 1, 2018, but he did not provide the Clerk with a

summons until November 2, 2018. (Resp’t Br. at 3-5; Resp’t Reply Br. Supp. Mot. Dismiss

(“Resp’t Reply Br.”) at 1-3.) Stutz, therefore, contends that the Assessor failed to timely

initiate this appeal and his case should be dismissed.

       Stutz’s argument is premised on its claim that Trial Rule 3, which governs the

commencement of civil actions in general, applies to the initiation of original tax appeals

in the Tax Court because they are civil actions. (See Resp’t Br. at 3 (citing Ind. Tax Court

Rule 2 (providing that the forms of civil action in the Tax Court include “an original tax

appeal arising under the tax laws of the State of Indiana by which an initial judicial appeal

of a final determination of . . . the Indiana Board of Tax Review . . . is sought”)).) Trial

Rule 3 provides that

             [a] civil action is commenced by filing with the court a complaint or
             such equivalent pleading or document as may be specified by

                                               3
          statute, by payment of the prescribed filing fee or filing an order
          waiving the filing fee, and, where service of process is required, by
          furnishing to the clerk as many copies of the complaint and
          summons as are necessary.

Ind. Trial Rule 3. Accordingly, to initiate an appeal pursuant to Trial Rule 3 a litigant must

satisfy three requirements: 1) timely file the complaint or equivalent pleading, 2) timely

file the prescribed filing fee or applicable waiver, and 3) contemporaneously provide the

clerk with the appropriate process papers. See T.R. 3; see also generally Ray-Hayes v.

Heinamann, 760 N.E.2d 172 (Ind. 2002) aff’d in part and rev’d in part on reh’g, 768 N.E.2d

899 (Ind. 2002). Trial Rule 3, however, does not control here.

       The Tax Court has promulgated several rules to “govern the procedure and

practice in all actions jurisdictionally cognizable” in its forum. Ind. Tax Court Rule 1. To

that end, Tax Court Rule 3 governs the commencement of civil actions in the Tax Court:

“[a]n original tax appeal from a final determination of the Indiana Board of Tax Review is

commenced by filing a petition in the Tax Court and filing a written notice of appeal with

the Indiana Board of Tax Review.” Ind. Tax Court Rule 3(B). Accordingly, to initiate an

original tax appeal pursuant to Tax Court Rule 3 a litigant need only satisfy two

requirements: 1) file a petition in the Tax Court; and 2) file a written notice of appeal with

the Indiana Board. Tax Ct. R. 3(B).

       The plain language of Tax Court Rule 3 indicates that it differs from Trial Rule 3

because it does not require litigants to provide the clerk with the appropriate process

papers in order to initiate an original tax appeal in the Tax Court. Compare Tax Ct. R.

3(B) with T.R. 3. See also Noble Cty. v. Rogers, 745 N.E.2d 194, 197 n.3 (Ind. 2001)

(indicating that the rules of statutory construction apply to the interpretation of court rules

of procedure); Allen Cty. Assessor v. Verizon Data Servs., Inc., 43 N.E.3d 705, 711 (Ind.

                                              4
Tax Ct. 2015) (providing that the words and phrases in clear and unambiguous statutes

should be given their plain, ordinary, and usual meanings), review denied. When, as in

this instance, the Trial Rules are “clearly inconsistent” with the Tax Court Rules the more

specific Tax Court Rule takes precedence. See Tax Ct. R. 1; see also, e.g., Rogers, 745

N.E.2d at 197 n.3 (providing that a specific court rule of procedure controls over a more

general one on the same subject matter). Accordingly, pursuant to Tax Court Rule 3 and

Indiana Code § 6-1.1-15-5(c), the Assessor was only required to file his Petition with the

Tax Court and his notice of appeal with the Indiana Board within 45-days after the Indiana

Board gave him notice of its final determination. See Tax Ct. R. 3(B); IND. CODE § 6-1.1-

15-5(c) (2018).

       The undisputed facts show that the Assessor’s Petition and notice of appeal were

filed with the Tax Court and Indiana Board within the statutorily required 45-day period.

(See, e.g., Resp’t Reply Br. at 4 n.3.) Therefore, Stutz has not established that the Court

lacks jurisdiction over the Assessor’s appeal on this basis.

         II.   Whether the Assessor timely served the Petition on Stutz?

       Next, Stutz maintains that the Assessor’s appeal should be dismissed because he

failed to timely serve his Petition directly on Stutz. (Resp’t Br. at 5-7.) Stutz explains that

both Indiana Code § 6-1.1-15-5 and Tax Court Rule 3(D) required the Assessor to serve

his Petition on Stutz directly on or before November 1, 2018, and by serving the Petition

on Stutz’s counsel of record for the administrative proceedings, he failed to comply with

the statutory requirement. (See Resp’t Br. at 5-7; Resp’t Reply Br. at 3-6.) As a result,

Stutz maintains the Assessor’s appeal should be dismissed for lack of jurisdiction.

       Indiana Code § 6-1.1-15-5 establishes the requirements that a party must follow in



                                              5
order to initiate an appeal of an Indiana Board final determination in the Tax Court:

          (b) A party may petition for judicial review of the final determination
          of the Indiana board regarding the assessment or exemption of
          tangible property. In order to obtain judicial review under this section,
          a party must:

              (1) file a petition with the Indiana tax court;

              (2) serve a copy of the petition on:

                   (A) the county assessor;

                   (B) the attorney general; and

                   (C) any entity that filed an amicus curiae brief with the
                      Indiana board; and

              (3) file a written notice of appeal with the Indiana board
                  informing the Indiana board of the party’s intent to obtain
                  judicial review.

See I.C. § 6-1.1-15-5(b), (e). The statute further provides that “a party must take the

action required by subsection (b) not later than . . . forty-five (45) days after the Indiana

board gives the person notice of its final determination, unless a rehearing is conducted

under subsection (a)[.]” I.C. § 6-1.1-15-5(c). In turn, Tax Court Rule 3(D) provides:

          Copies of the petition . . . shall be served upon those persons
          designated by any applicable statute. A petitioner complies with this
          Rule by serving a copy of the petition in the manner provided by Trial
          Rules 4.1 through 4.11 as applicable. Copies of the petition shall be
          served upon public officers only in their official capacities.

Tax Ct. R. 3(D).

       While Indiana Code § 6-1.1-15-5 is silent about how a litigant must serve the

petition, Tax Court Rule 3(D) states that service is proper if copies of the petition are

served in the manner provided by the applicable provisions of Trial Rules 4.1 through

4.11. Compare I.C. § 6-1.1-15-5 with Tax Ct. R. 3(D). To that end, Trial Rule 4.6 provides



                                               6
that “[s]ervice upon a[ domestic or foreign] organization may be made . . . upon an

executive officer thereof, or if there is an agent appointed or deemed by law to have been

appointed to receive service, then upon such agent.” Ind. Trial Rule 4.6(A)(1) (emphasis

added). Accordingly, Indiana Trial Rule 4.6(A)(1) permits various methods of service on

an organization that, when followed, constitute proper service.

       The Assessor maintains that because he caused the Petition to be served on

Stutz’s attorneys, as its agents, he perfected service in accordance with Trial Rule

4.6(A)(1). (See Pet’r Br. at 1-3.) While the Court is not persuaded by the Assessor’s

argument, his technical failure to comply with the trial rules does not necessitate dismissal

of this appeal because the plain language of Indiana Trial Rule 4.6(A)(1) provides a safe

harbor, rather than a mandate. See T.R. 4.6(A)(1); see also, e.g., Beyer v. State, 280

N.E.2d 604, 606 (Ind. 1972); Board of Comm’rs of Daviess Cty. v. State ex rel. Galley,

128 N.E. 596, 597 (Ind. 1920) (both explaining that “may” is generally understood to be

permissive, not mandatory).

       Here, the attorneys the Assessor timely served on November 1, 2018, represented

Stutz during the nearly two-and-a-half year long administrative process. (See Pet’r Pet.

¶ 3, Attach. at 1, 10.) There are no facts indicating that the Assessor’s counsel had

reason to believe they would not continue to represent Stutz in the Tax Court action

challenging the administrative decision. (See generally Resp’t Br.; Resp’t Reply Br.)

Furthermore, there is no indication that Stutz’s attorneys did not accept service of the

Petition.1 (See generally Resp’t Br.; Resp’t Reply Br.) Moreover, there is no indication

that Stutz did not have timely knowledge of this appeal. (See generally Resp’t Br.; Resp’t


1
  By accepting service, Stutz’s attorneys had a duty to deliver the Petition to Stutz or notify Stutz
that the Petition was in their possession. See Ind. Trial Rule 4.16(B).
                                                 7
Reply Br.)

       Stutz cites Smith v. Johnston, 711 N.E.2d 1259, 1263 (Ind. 1999) for the

proposition that the Assessor’s method of service was ineffective because Trial Rule 4

mandates that the Petition be served on the party rather than the party’s attorneys in

order to secure jurisdiction. (See Resp’t Br. at 6-7 (citing Smith v. Johnston, 711 N.E.2d

1259, 1263 (Ind. 1999)).) That case is not applicable to the issues in this case because

Johnston did not involve the propriety of a party’s method of service. See Smith, 711

N.E.2d at 1262-65. Moreover, Indiana Trial Rule 4.15(F) instructs that no service of

process shall be set aside that is “reasonably calculated” to inform the person to be served

of the impending action against him. See Ind. Trial Rule 4.15(F).2 Indeed, Trial Rule

4.15(F)’s requirement that service be “reasonably calculated to inform” implicates the

same fairness concerns protected by the basic due process requirements for notice and

“is identical to the ‘elementary and fundamental requirement of due process[:] . . . notice

reasonably calculated, under all circumstances, to apprise[.]’” Glennar Mercury-Lincoln,

Inc. v. Riley, 338 N.E.2d 670, 675 (Ind. Ct. App. 1975) (citations omitted). See also

Gourley v. L.Y., 657 N.E.2d 448, 450 (Ind. Ct. App. 1995) (“The minimal requirements of

due process require only that the notice be served in a manner reasonably calculated to

inform the defendant of the pending action” (citation omitted)), trans. denied.

Consequently, the Court must determine whether the manner of service that occurred in

this case was reasonably calculated to inform Stutz of the initiation of this appeal.



2
  Trial Rule 4.15(F) applies to service of summons, but due to the language of Tax Court Rules
1 and 3, it applies equally to service of a petition that commences an original tax appeal. See
Ind. Tax Court Rules 1, 3. See also, e.g., Rumfelt v. Himes, 438 N.E.2d 980, 983 (Ind. 1982)
(explaining that courts are to construe Indiana’s rules of trial procedure harmoniously whenever
possible).
                                               8
       The facts before the Court indicate that the Petition named Stutz as the

respondent, was served on the attorneys that represented Stutz during the nearly two-

and-a-half year long administrative process, and that those same attorneys have

continued to represent Stutz in the challenge to the administrative final determination.

(See generally Resp’t Br.; Resp’t Reply Br.) Moreover, Stutz has not alleged that it was

harmed or prejudiced by the manner of service. (See generally Resp’t Br.; Resp’t Reply

Br.) Stutz also has not alleged that it did not have actual, timely knowledge of this appeal.

(See generally Resp’t Br.; Resp’t Reply Br.) See also, e.g., Northwestern Nat’l Ins. Co v.

Mapps, 717 N.E.2d 947, 955 (Ind. Ct. App. 1999) (explaining that while “actual notice

alone will not cure defective service, it may be considered in determining whether the

notice was reasonably calculated to inform an organization of the action”). Accordingly,

based on the unique facts of this case, the Court finds that service of the Petition on the

attorneys who represented Stutz during the administrative process on November 1, 2018,

substantially complied with the rules for establishing effective service because the service

was reasonably calculated to inform Stutz of the initiation of this appeal. See Glennar

Mercury-Lincoln, 338 N.E.2d at 675-76.

       This decision comports with the Court’s “long-standing policy that cases should be

decided on the merits and justice should not be defeated by [procedural] technicalities.”

See Miller Beach Invs., LLC v. Dep’t of Local Gov’t Fin., 848 N.E.2d 1190, 1194 n.3 (Ind.

Tax Ct. 2006). Furthermore, the Indiana Supreme Court has stated:

          Although our procedural rules are extremely important, it must be
          kept in mind that they are merely a means for achieving the ultimate
          end of orderly and speedy justice. [Thus, w]e must examine our
          technical rules closely when it appears that involving them would
          defeat justice; otherwise we become slaves to the technicalities
          themselves and they acquire the position of being the ends instead

                                             9
           of the means. This is e[s]pecially true in [this] case . . . where we
           prejudice no one [in] allowing the . . . [case to proceed] at this point.

American States Ins. Co. v. State ex rel. Jennings, 283 N.E.2d 529, 531 (Ind. 1972). Like

the Indiana Supreme Court’s function, this Court’s “‘function is to serve the truth and to

decide legal issues, not clear [its] dockets by utilization of unnecessarily narrow technical

interpretations” of court procedural rules. See id. at 531-32. Therefore, based on the

limited facts before it, the Court is not persuaded that the Assessor’s appeal should be

dismissed for lack of jurisdiction.

                                       CONCLUSION

       For the foregoing reasons, the Court DENIES the Assessor’s Motion to Dismiss.

Consistent with the Court’s Order of December 28, 2018:               1) the Assessor shall

conventionally file a certified copy of the administrative record simultaneously with his e-

filed brief no later than thirty (30) days after the date of this Order; 2) Stutz shall file its

response brief no later than thirty (30) days after the date the Assessor’s brief is due; and

3) the Assessor may file a reply brief no later than fifteen (15) days after the date Stutz’s

response brief is due.

       SO ORDERED this 11th day of January 2019.




                                                   Martha Blood Wentworth, Judge
                                                   Indiana Tax Court




Distribution:
Jessica R. Gastineau, Jeffrey T. Bennett, Bradley D. Hasler, Curtis T. Hill, Jr.




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