                                                                               FILED
                                                                           Jul 31 2018, 8:07 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




APPELLANT PRO SE                                            ATTORNEYS FOR APPELLEES-
A.J. (Andrew) Patrick                                       INTERVENORS MADISON
Anderson, Indiana                                           COUNTY AUDITOR AND
                                                            MADISON COUNTY TREASURER
                                                            Jeffrey K. Graham
                                                            John E. Woods
                                                            Graham, Regnier, Farrer & Wilson
                                                            P.C.
                                                            Elwood, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Picket Fence Property Company,                              July 31, 2018
and Andrew Patrick,1                                        Court of Appeals Case No.
Appellant-Plaintiff,                                        48A02-1710-MI-2493
                                                            Appeal from the
        v.                                                  Madison Circuit Court
                                                            The Honorable
Chris Davis,2                                               Carl Van Dorn, Senior Judge
Appellee-Defendant,                                         Trial Court Cause No.
                                                            48C03-1608-MI-660
and




1
 Andrew Patrick claims to be the successor-in-interest to original plaintiff Picket Fence Property Company,
and this appears to not be in dispute.
2
 Defendant Chris Davis does not participate in this appeal, but we include him in the caption pursuant to
Indiana Appellate Rule 17(A), which provides that a party in the trial court shall be a party on appeal.

Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018                           Page 1 of 24
      Madison County Auditor and
      Madison County Treasurer,
      Appellees-Intervenors.




      Kirsch, Judge.


[1]   Picket Fence Property Company (“Picket Fence”) successfully bid upon a

      certain property at a Madison County Commissioners’ Certificate Sale and,

      thereafter, petitioned the Madison Circuit Court (“the trial court”) for issuance

      of a tax deed for the property. The trial court issued an order that, in addition

      to granting the request for a tax deed, also stated that certain specified property

      taxes were waived – that is, not owed by the purchaser, Picket Fence. The

      Madison County Auditor and Madison County Treasurer intervened and

      sought a corrected order with regard to the property taxes owed by Picket

      Fence, and the trial court granted the request and issued two orders. Andrew

      Patrick (“Patrick”), as a successor to Picket Fence, filed a motion to compel,

      asserting that the Madison County Auditor needed to remove additional

      property taxes from his obligation, and the trial court denied Patrick’s motion.

      Patrick appeals and raises four issues that we consolidate and restate as:

      whether the trial court erred when it determined that the Madison County

      Auditor and Madison County Treasurer were in compliance with the trial


      Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018   Page 2 of 24
      court’s orders, which determined that Patrick owed taxes that accrued in 2015,

      the year of the Treasurer’s Tax Sale, including those that accrued between the

      October 2015 Treasurer’s Tax Sale and the April 2016 Commissioners’

      Certificate Sale.


[2]   Asserting that Patrick’s appeal is frivolous and in bad faith, the Madison

      County Auditor and Madison County Treasurer ask us to award appellate

      attorney’s fees.


[3]   We affirm.


                                    Facts and Procedural History
[4]   In 2015, the Madison County Treasurer compiled a list of properties that were

      delinquent in the payment of real estate taxes, including a parcel commonly

      known as 104 Morton Street, Anderson, Indiana (“the Property”), and, on

      October 26, 2015, Madison County conducted a Treasurer’s Tax Sale (“the

      October 2015 Tax Sale”) for various parcels, including the Property. Appellant’s

      App. Vol. II at 11. The Property did not receive the statutory minimum bid and

      went unsold at the October 2015 Tax Sale. As a result, the Madison County

      Board of Commissioners (“Board of Commissioners”) acquired a lien on the

      Property, pursuant to Indiana Code section 6-1.1-24-6, in the amount of the

      statutory minimum sale price.3 Thereafter, the Board of Commissioners held a




      3
        Indiana Code section 6-1.1-24-5(e) provides, in relevant part, that a tract of real property may not be sold
      for an amount which is less than the sum of:

      Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018                            Page 3 of 24
      Commissioners’ Certificate Sale on April 8, 2016 (“the April 2016 Certificate

      Sale”), pursuant to Indiana Code section 6-1.1-24-6.1, and offered to sell,

      among other parcels, the county’s interest in the Property.


[5]   Picket Fence, as the successful bidder for the Property at the April 2016

      Certificate Sale, purchased a certificate for the Property. After providing the

      required statutory notices to the property owner of record for the Property,

      Picket Fence filed a petition on August 22, 2016 with the trial court requesting

      issuance of a tax deed on the Property.4 Appellees’ App. at 2-3. The trial court

      granted Picket Fence’s petition and issued an order on September 26, 2016

      (“the September 2016 Order”), directing the Madison County Auditor to

      execute and deliver a tax deed to Picket Fence. The September 2016 Order also

      included the following language concerning property taxes, which ultimately

      resulted in the present appeal:




      (1) the delinquent taxes and special assessments on each tract or item of real property;
      (2) the taxes and special assessments on each tract or item of real property that are due and payable in the year of
      the sale, regardless of whether the taxes and special assessments are delinquent;
      (3) all penalties which are due on the delinquencies;
      (4) the amount prescribed by section 2(b)(3)(D) of this chapter reflecting the costs incurred by the county due
      to the sale;
      (5) any unpaid costs which are due under section 2(c) of this chapter from a prior tax sale; and
      (6) other reasonable expenses of collection, including title search expenses, uniform commercial code
      expenses, and reasonable attorney’s fees incurred by the date of the sale. (Emphasis added).
      4
        Picket Fence requested a tax deed pursuant to Indiana Code section 6-1.1-25-4.6, which provides that if the
      property owner of record does not redeem the property within the required time, the purchaser may petition
      the trial court for issuance of a tax deed.

      Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018                                Page 4 of 24
               IT IS FURTHER ORDERED that the 2015 Spring and 2015
               Fall property taxes, payable Spring and Fall 2016, and the Spring
               2016 property taxes, payable Spring 2017, are hereby waived.5


      Appellant’s App. at 7.


[6]   On October 26, 2016, the Madison County Auditor and Madison County

      Treasurer (together “Madison County”) filed a motion to intervene and to

      correct errors, asserting that the September 2016 Order was in error in its

      determination of taxes because it (1) “extinguishes . . . taxes and special

      assessments that accrued subsequent to the October 2015 Tax Sale” and (2)

      “also impermissibly orders Madison County to waive taxes which are not yet

      payable, contrary to Indiana’s statutes.”6 Appellant’s App. Vol. II at 8-9. On

      February 21, 2017, after becoming aware of numerous other properties similarly

      situated to 104 Morton Street that were purchased by Picket Fence at the April

      2016 Certificate Sale, Madison County filed a motion to consolidate, intervene,

      and for relief from orders, seeking to consolidate several cause numbers with

      the trial court’s 104 Morton Street case and also re-asserting that relief from the

      September 2016 Order was appropriate because the order, which relieved Picket

      Fence of paying some taxes, “infringe(s) on Madison County’s statutory duties”

      to determine and collect property taxes and “will unnecessarily burden




      5
        We observe the general principle that in Indiana real estate taxes are assessed for a year and are paid in two
      installments, on May 10 and November 10, of the following year. Ind. Code § 6-1.1-22-9(a).
      6
       We note that, from the record before us, there appears to be no dispute between the parties that Patrick is
      entitled to a tax deed on the property.

      Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018                            Page 5 of 24
      Madison County and the taxpayers of Madison County.” Id. at 4-5. Madison

      County asked the trial court to correct its September 2016 order and clarify that,

      pursuant to statute, Picket Fence was responsible for taxes accruing on and after

      January 2015, the year of the Treasurer’s Tax Sale. Id. at 16 (arguing that

      “when the 2015 pay 2016 real estate property taxes became due, those amounts

      are due and owing by the Certificate Purchaser”).


[7]   Following a February 27, 2017 hearing, the trial court issued an order on

      March 31, 2017 (“the March 31 Order”), stating that the matter was governed

      by Indiana Code section 6-1.1-25-4(j) and that Madison County had complied

      with that statute’s requirements while determining the taxes owed. More

      specifically, the March 31 Order stated, in relevant part:


               3. The law describes what is to be removed from the tax
               duplicate7 before a deed is issued to a purchaser of a certificate of
               sale[.] . . . [Indiana Code section] 6-1.1-25-4 directs that the
               taxes, special assessments, interest[,] penalties and costs
               remaining due be removed from the tax duplicate and further
               directs that it be calculated as a mathematical number as the
               difference between:


                      a. The last minimum bid determined for the last tax sale
               plus any penalty associated with a delinquency not due at the tax




      7
       The “tax duplicate” refers to the county’s roll of property taxes. See Ind. Code § 6-1.1-22-3 (directing the
      auditor of each county to prepare a roll of property taxes payable in that year for the county, and “This roll
      shall be known as the ‘tax duplicate’” and shall show, among other things, the value of all the assessed
      property in the county and the person liable for the taxes on the assessed property).

      Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018                            Page 6 of 24
        sale but due before the certificate sale. Those two added together
        and


               b. The amount paid for the certificate of sale subtracted
        therefrom.


        4. The result of that mathematical problem is the amount the
        new owner does not have to pay. Any later taxes would be
        payable by the new owner.


        5. The statute setting the parts of the minimum bid (6-1.1-24-
        5(e)) include:


               (1) The delinquent taxes and special assessments on each
        tract or item of real property;


               (2) The taxes and special assessments on each tract or item
        of real property that are due and payable in the year of the sale,
        regardless of whether the taxes and special assessments are
        delinquent.


                 (3) All penalties which are due on the delinquencies;


                 (4) Three other items of cost and expenses of sale[.]


        6. An order for a new deed in this case should indicate the taxes removed
        by the last minimum bid for the tax sale are not payable by the new
        owner.


        7. That any tax due and payable in a year after the tax sale herein
        should be payable by the new owner[.]


Appellees’ App. Vol. II at 11-12 (emphasis added).

Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018        Page 7 of 24
[8]   In April 2017, Madison County filed a Motion to Clarify Court’s Order,

      advising the trial court that the parties were “unable to reach an agreement on

      the [e]ffect of the Court’s March 31, 2017 Order” and asking the trial court to

      clarify “as the parties disagree on what effect the Court’s Order has on any

      delinquent taxes on the parcels at issue in this action.” Id. at 13-14. On April

      17, 2017, the trial court conducted a hearing and thereafter issued a May 23,

      2017 Clarification Order (“the May 23 Order”), which confirmed its ruling in

      the March 31 Order and stated in relevant part:


              1. The question herein is determined by Indiana Code 6-1.1-25-
              4(j).


              2. It states when a deed is issued to a purchaser of a certificate of
              sale, the auditor shall remove from the tax duplicate the taxes,
              special assessments, interest, penalties, and costs remaining due.


              3. That section continues by removing from the tax duplicate the
              tax amount contained in the last minimum bid for the last tax
              sale as well as certain penalties.


              4. Indiana Code 6-1.1-24-5(e) defines the tax parts of a minimum
              bid as


                       a) The delinquent taxes and special assessments on each
                       tract or item of real property;


                       b) The taxes and special assessments on each tract or item
                       of real property that are due and payable in the year of the
                       sale, regardless of whether the taxes and special
                       assessments are delinquent;


      Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018    Page 8 of 24
                           c) All penalties which are due on the delinquencies;


                 5. Any tax not included in the minimum bid taxes are left for the
                 purchaser of a certificate of sale to pay.


      Id. at 19 (emphasis added).


[9]   Sometime in 2017, Patrick asserted a successor interest to Picket Fence, and, on

      June 22, 2017, Patrick filed his Motion to Compel,8 asking the trial court to

      compel the Madison County Auditor to remove all taxes, special assessments,

      interest, and penalties that occurred before the April 2016 Certificate Sale,

      including (1) Spring 2015/due Spring 2016 taxes and (2) Fall 2015/due Fall

      2016 taxes.9 Appellees’ App. at 20-22. The trial court conducted a hearing on

      September 11, 2017. At the hearing, counsel for Madison County argued that,

      pursuant to Indiana Code section 6-1.1-25-4(f), and consistent with the trial

      court’s March 31 and May 23 Orders, Patrick was responsible for the taxes that

      accrued in the year of the tax sale, including those accruing after the October

      2015 Tax Sale and before the April 2016 Certificate Sale, which Patrick was

      seeking to have removed from his tax obligation. Tr. Vol. II at 6-9, 13-14.

      Indiana Code section 6-1.1-25-4(f) states, in part:




      8
          It is not clear from the record as to exactly when Patrick obtained a successor interest in Picket Fence.
      9
       We note that Patrick did not challenge other aspects of the March 31 Order that determined that (1)
      Madison County was entitled to intervene and (2) Madison County’s request to consolidate should be
      granted.

      Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018                              Page 9 of 24
               (f) A tax deed executed under this chapter vests in the grantee an
               estate in fee simple absolute, free and clear of all liens and
               encumbrances created or suffered before or after the tax sale except
               those liens granted priority under federal law and the lien of the
               state or a political subdivision for taxes and special assessments which
               accrue subsequent to the sale[.] (Emphasis added.)


[10]   Madison County’s position was that the word “sale” in the statute’s

       “subsequent to the sale” phrase refers to the Treasurer’s Tax Sale, not the later

       Commissioners’ Certificate Sale, and therefore, Patrick was responsible for the

       taxes that accrued after the October 2015 Tax Sale and before the April 2016

       Certificate Sale. Tr. Vol. II at 6-8, 13-14. Counsel for Madison County

       summarized the issue:


               We’re arguing about . . . What does sale mean? Does sale mean
               tax sale in the October or does it mean the April commissioner’s
               sale and if it means the tax sale back in October then the county .
               . . has complied with your orders. If it means what Mr. Patrick .
               . . argued[,] then the county has not. So that in my opinion that’s
               the stiletto by which you can solve this problem and decide
               whether or not the county has complied with these orders[,] by
               determining what sale means in 6-1.1-25-4 sub f.


       Id. at 16-17.


[11]   At the hearing, Madison County called as a witness Matthew Portner

       (“Portner”), who was general counsel at SRI Incorporated, a company that

       “[per]forms tax sales across Indiana[,]” in eighty-five of Indiana’s ninety-two

       counties Id. at 30. His responsibilities included providing guidance to counties



       Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018       Page 10 of 24
       and keeping counties in compliance with the statutes. Portner provided an

       overview of the general tax sale process as follows:


               So when the treasurer[’s tax] sale occurs[,] if nobody purchases
               the lien[,] then by statute the auditor issues a certificate to the
               county commissioner. . . . And then that’s when the county
               commissioners can take that certificate and sell it at a cheaper
               amount that[’s] below the statutory minimum bid at the original
               [tax] sale. . . . And the difference between those two amounts is
               what should have been removed [from the tax rolls]. That’s the
               only portion that should be removed. If there’s taxes that become
               due and payable the next spring installment[,] those are required by
               statute to be paid by the certificate purchaser.


       Id. at 14-15 (emphasis added). Portner said that “starting in January 2016 and

       moving forward [Patrick]’s going to be responsible to pay everything that

       becomes due and payable.” Id. at 32-33. Portner testified that he had reviewed

       the trial court’s March 31 Order and May 23 Clarification Order, and he opined

       that Madison County was in compliance with those Orders. Id. at 31.


[12]   Madison County also called as a witness, Todd Culp (“Culp”), the Chief

       Deputy Auditor of Madison County at the time. Culp said that “the last

       installment that would have been wiped is the one that was due and payable in

       November 2015[,]” meaning that the last taxes that were removed from the tax

       duplicate – and for which Patrick was not responsible – were those that accrued

       in 2014 (due and payable in November 2015). Id. at 38. Culp explained that,

       when a person purchases a property at a certificate sale, as Patrick did, the

       county auditor is directed to remove from the tax duplicate certain taxes,


       Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018   Page 11 of 24
specifically those that are due and payable in the year of the tax sale, pursuant

to another subjection of Indiana Code section 6-1.1-25-4. Culp explained:


         [Indiana Code section] 6-1.1-25-4 directs that the taxes special
         assessments, interests, and penalties and costs remaining due be
         removed from the tax duplicate and further directs that it be
         calculated as a mathematical number is a difference between the
         last minimum bid determined for the last tax sale plus any
         penalties associated with the delinquency not due at the tax sale
         but due before the certificate sale. Those two (2) added together
         and the amount paid for the certificate sale subtracted there from.
         The result of that mathematical problem is the amount that the
         new owner does not have to pay. So he’s bought the certificate at
         certificate sale, it points back to the treasurer sale in October and
         lists that minimum bid as the taxes that he does not have to pay
         so we have complied with the court’s order and removed those
         from the tax duplicate.


         ....


         [T]he entire tax bill that’s due in that year is included on the tax sale
         in October, including the November installment so those are all
         removed from the record already.10


Id. at 20-22 (emphasis added). Culp testified that he had reviewed the trial

court’s March 31 Order and the May 23 Order, and he confirmed that Madison

County had complied with the trial court’s orders. Id. at 20.




10
  Portner, like Culp, provided testimony about the specific taxes that were properly removed by the auditor,
explaining that “everything due and payable within the year of the sale . . . is part of the minimum bid” and
gets removed, and that the Madison County Auditor did so in this case. Id. at 35-36.

Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018                        Page 12 of 24
[13]   On October 9, 2017, the trial court issued an Order denying Patrick’s Motion to

       Compel and finding that Madison County was in compliance with the trial

       court’s previous orders of March 31, 2017 and May 23, 2017. Appellant’s App.

       Vol. II at 21. Patrick now appeals.


                                       Discussion and Decision
[14]   At the outset, we observe that Patrick has chosen to proceed pro se. It is well

       settled that pro se litigants are held to the same legal standards as licensed

       attorneys. Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016). This

       means that pro se litigants are bound to follow the established rules of

       procedure and must be prepared to accept the consequences of their failure to

       do so. Id. at 983-84. These consequences include waiver for failure to present

       cogent argument on appeal. Id. at 984. While we prefer to decide issues on the

       merits, where the appellant’s noncompliance with appellate rules is so

       substantial as to impede our consideration of the issues, we may deem the

       alleged errors waived. Id. “We will not become an ‘advocate for a party, or

       address arguments that are inappropriate or too poorly developed or expressed

       to be understood.’” Id. (quoting Perry v. Anonymous Physician 1, 25 N.E.3d 103,

       105 n.1 (Ind. Ct. App. 2014), trans. denied, cert. denied 136 S. Ct. 227 (2015)).


[15]   Initially, we note that Patrick’s appeal contains a number of procedural and

       substantive deficiencies. Appellate Rule 50(A)(2)(b) requires that an

       Appellant’s Appendix “shall contain the appealed judgment or Order, including

       any written opinion, memorandum of decision, or findings of fact and


       Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018   Page 13 of 24
       conclusions thereon relating to the issues raised on appeal.” Here, Patrick

       includes the October 9 Order, from which he appeals, but that October 9 Order

       was a one-sentence order that summarily denied Patrick’s request to compel

       Madison County to remove additional taxes from the tax duplicate. The

       October 9 Order was a determination that the trial court’s March 31 and May

       23 Orders were correct, and those March and May orders are necessary to our

       determination of Patrick’s claim, but neither is included in Patrick’s Appendix,

       although Madison County provided the orders in their Appellees’ Appendix.

       There are also instances where Patrick provides only a partial document in his

       Appendix, and the table of contents to his Appendix also refers to one or more

       documents that are not in it. See Appellant’s App. Vol. I at 2 (citing to Motion to

       Compel at 19, but that motion is not at that page or otherwise included in

       Appendix); Appellant’s App. Vol. II at 10 (providing only part of Madison

       County’s Motion to Consolidate, Intervene, and Relief from Orders).


[16]   As for his appellate brief, Patrick’s statement of the issues fails to comply with

       Indiana Appellate Rule 46(A)(4), as his statement is unclear, making it difficult

       to determine the exact issues before this court. Indiana Appellate Rule 46(A)(6)

       provides, in part, that the appellant’s statement of facts “shall be in narrative

       form and shall not be a witness by witness summary of the testimony”;

       however, Patrick’s statement of facts, for the most part, recites quotes of

       argument made or testimony presented at the September 11, 2017 hearing, and

       his facts section cites to a standard of review, which is not proper for that

       section of the brief. Indiana Appellate Rule 46(A)(8) addresses the


       Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018   Page 14 of 24
       requirements for the argument section of an appellant’s brief and states in

       pertinent part that the argument must contain the contentions of the appellant

       on the issues presented, supported by cogent reasoning, and each contention

       must be supported by citations to the authorities, statutes, and the Appendix or

       parts of the Record on Appeal relied on. In his argument section, Patrick

       devotes significant text to restating or quoting what Madison County argued at

       a hearing or in pleadings before the trial court, rather than developing coherent

       arguments in support of his own position. Our review of Patrick’s claim or

       claims is impeded by the fact that his arguments are, in large part, too poorly

       developed or expressed to be understood.11


[17]   All of that being said, we prefer to decide cases on their merits, and thus we

       attempt to resolve the pending issues concerning the trial court’s determination

       of the property taxes for which Patrick is responsible and Madison County’s

       compliance with the relevant trial court orders.




       11
            By way of example, the following is a paragraph from Patrick’s Argument section, Appellant’s Br. at 16:

                  The original order could be interoperated [sic] as “sale” to mean execution of tax deed,
                  and accrue to mean accrue, not due and payable; waving (Spring 15/pay16), (Fall
                  15/Pay16), and (Spring 16/Pay17). The final order essentially declared “sale” to mean
                  the initial offering of sale, and accrue to mean due and payable, subsequent to the initial
                  offering. Ordering, at its simplest, that (Spring 2015/pay 2016) taxes are to have accrue
                  after October 2015; waving (Fall 2014/pay15), and prior. “Something is only worth what
                  someone is willing to pay for it.” (Publilius Syrus, 1st century BC).



       Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018                           Page 15 of 24
                                    I. Appeal of October 9 Order
[18]   Patrick challenges the trial court’s October 9 Order determining that Madison

       County was in compliance with the trial court’s March 31 and May 23 Orders

       concerning property taxes owed by Patrick on the Property. Here, the dispute

       began after the trial court’s September 2016 Order, which waived – that is,

       found that Patrick was not responsible for – the following: (1) the 2015 spring

       taxes, due in May 2016; (2) the 2015 fall property taxes, due in November 2016;

       and (3) the 2016 spring property taxes, due in May 2017.12 Madison County

       thereafter intervened and asked the trial court to correct its September 2016

       Order and clarify that, pursuant to statute, Patrick was responsible for taxes

       accruing in the year of the Treasurer’s Tax Sale and that his obligation was

       reduced only by a statutory mathematical formula involving the difference

       between the statutory tax sale minimum bid and the price paid for the certificate

       at the later April 2016 Certificate Sale. The trial court then issued the March 31

       Order, which determined, in sum: (1) Patrick’s claim was governed by Indiana

       Code section 6-1.1-25-4(j); (2) he was responsible for taxes due and payable in

       the year of the Tax Sale, here 2015, reduced only by the difference between the

       last minimum bid and the amount paid for the certificate; (3) “the taxes

       removed by the last minimum bid for the tax sale are not payable by the new




       12
         We note that, on appeal, Patrick does not appear to dispute that he owes the taxes that accrued after he
       purchased the certificate at the April 2016 Commissioners’ Certificate Sale.



       Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018                         Page 16 of 24
       owner” and (4) “any tax due and payable in a year after the tax sale herein

       should be payable by the new owner[.]” Appellees’ App. Vol. II at 11-12.


[19]   At Madison County’s request for clarification, the May 23 Order confirmed the

       March 31 Order’s determination and stated in relevant part: “Any tax not

       included in the minimum bid taxes are left for the purchaser of a certificate of

       sale to pay.” Id. at 19. Patrick thereafter filed his motion to compel, asking that

       the trial court compel the Madison County Auditor to remove additional taxes

       from the tax duplicate, thereby continuing to claim that he did not owe the

       amount of taxes as calculated by the county. Following a September 2017

       hearing, the trial court denied Patrick’s motion, and it is from this denial that he

       now appeals.


[20]   The trial court’s decision was based upon its interpretation of one or more

       statutes. The interpretation of a statute is a question of law, a matter which we

       review de novo. Hall v. Terry, 837 N.E.2d 1095, 1098 (Ind. 2005) (citing In re

       2002 Lake Cnty. Tax Sale, 818 N.E.2d 505, 507 (Ind. Ct. App. 2004)).


[21]   Indiana Code section 6-1.1-25-4(f) (“Subsection f”) addressing the issuance of

       tax deeds, states, in relevant part:


               (f) A tax deed executed under this chapter vests in the grantee an
               estate in fee simple absolute, free and clear of all liens and
               encumbrances created or suffered before or after the tax sale except
               those liens granted priority under federal law and the lien of the
               state or a political subdivision for taxes and special assessments which
               accrue subsequent to the sale and which are not removed under


       Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018      Page 17 of 24
               subsection (e). However, subject to subsection (g), the estate is
               subject to:


               (1) all easements, covenants, declarations, and other deed
               restrictions shown by public records;


               (2) laws, ordinances, and regulations concerning governmental
               police powers, including zoning, building, land use,
               improvements on the land, land division, and environmental
               protection; and


               (3) liens and encumbrances created or suffered by the grantee.


       (emphasis added).


[22]   In finding that “any tax due and payable in a year after the tax sale herein

       should be payable by the new owner[,]” Appellees’ App. Vol. II at 11-12, the trial

       court implicitly determined that “sale” – as used in Subsection f’s phrase,

       “which accrue subsequent to the sale” – referred to the Tax Sale (in this case,

       the October 2015 Tax Sale) and not the later-held April 2016 Commissioners’

       Certificate Sale. On appeal, Patrick claims that the trial court was in error

       because the word “sale” means the Commissioners’ Certificate Sale, such that

       he only owes the taxes that accrued subsequent to the April 2016

       Commissioners’ Sale. Appellant’s Br. at 28. We disagree.


[23]   “When interpreting a statute, our primary goal is to fulfill the legislature’s

       intent.” Jenner v. Bloomington Cellular Servs., Inc., 77 N.E.3d 1232, 1238 (Ind. Ct.

       App. 2017), trans. denied. We start with the text of the statute, giving words


       Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018    Page 18 of 24
       their plain meaning. Id.; see also Ind. Code § 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.’” Jenner,

       77 N.E.3d at 1238 (quoting State v. Oddi-Smith, 878 N.E.2d 1245, 1248 (Ind.

       2008)).


[24]   Here, Subsection f provides that the recipient of a tax deed receives an estate in

       fee simple, free and clear of all liens and encumbrances “created or suffered before

       or after the tax sale except . . . the lien of the state or a political subdivision for taxes and

       special assessments which accrue subsequent to the sale[.]” The second reference in

       the same sentence to “the sale” clearly refers back to the prior-mentioned “tax

       sale.” Based on the plain language of the statute, we find no support for

       Patrick’s view that the second-referenced “sale” in the sentence means a

       Commissioners’ Certificate Sale.


[25]   A later subsection of the same statute further supports our determination.

       Indiana Code section 6-1.1-25-4(j) (“Subjection j”) addresses the situation

       “[w]hen a deed is issued to a purchaser of a certificate of sale,” as occurred in

       this case, and it directs the county auditor to remove some taxes from the tax

       duplicate. Subjection j states:


               (j) When a deed is issued to a purchaser of a certificate of sale
               sold under IC 6-1.1-24-6.1, the county auditor shall, in the same
               manner that taxes are removed by certificate of error, remove
               from the tax duplicate the taxes, special assessments, interest,
               penalties, and costs remaining due as the difference between:



       Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018             Page 19 of 24
                         (1) the amount of:


                                   (A) the last minimum bid under IC 6-1.1-24-513; plus


                                   (B) any penalty associated with a delinquency that
                                   was not due until after the date of the sale under IC
                                   6-1.1-24-5 but is due before the issuance of the
                                   certificate of sale, with respect to taxes included in
                                   the minimum bid that were not due at the time of
                                   the sale under IC 6-1.1-24-5; and


                         (2) the amount paid for the certificate of sale.


       Subsection (j)(1)(B) of this statute discusses the delinquency that was “not due

       until after the date of the sale” but is due “before the issuance of the certificate of sale.”

       This language, which we note is used in the same sentence, purposefully

       distinguishes “the date of sale” from the “issuance of the certificate of sale,”

       and, we find, reflects that “the date of sale” refers to the Tax Sale.


[26]   Accordingly, we find that “subsequent to the sale” as used in Indiana Code

       section 6-1.1-45-4(f) means subsequent to the Tax Sale, not the later-held

       Certificate Sale; our determination is consistent with the trial court’s March 31,

       May 23, and October 9 Orders, which found that “the taxes removed by the last




       13
         Although we provided the statutory definition of “minimum bid” in Footnote 3, above, we note our
       agreement with Madison County’s description: The minimum bid “is, effectively, the sum of all delinquent
       taxes, taxes due and payable in the year of the tax sale, and all penalties and costs associated with the sale.”
       Appellees’ Br. at 10.



       Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018                            Page 20 of 24
       minimum bid for the tax sale are not payable by [Patrick]” and “any tax due

       and payable in a year after the tax sale herein should be payable by [Patrick.]”

       Appellees’ App. Vol. II at 11-12. The testimony of Culp and Portner further

       supports our statutory interpretation.


[27]   Here, at the September 2017 hearing, Culp testified that “[i]n the last minimum

       bid[,] we’ve already taken off the tax bill between the tax sale and the

       commissioner’s sale[,]” Tr. Vol. II at 24, such that the last tax installment that

       was “wiped is the one that was due and payable in November 2015” which

       would have been the taxes accruing in 2014 and payable in 2015. Id. at 38.

       This testimony reflects that taxes due and payable in 2015, the year of the Tax

       Sale, have been removed from the tax duplicates, and Patrick is not responsible

       for those taxes. Id. at 21-22 (“[T]he entire tax bill that’s due in that year is

       included on the tax sale in October, including the November installment so

       those are all removed from the [tax] record already.”). However, with regard to

       what accrues in 2015, Portner testified that “[a]nything [that] becomes due and

       payable after [January 1, 2016] is on the certificate purchaser to pay[,]” which

       means taxes accruing in Spring and Fall 2015, payable in 2016. That includes

       the taxes accruing after the October 2015 Tax Sale and before the April 2016

       Certificate Sale. Both Culp and Portner testified that Madison County was in

       compliance with the trial court’s March 31 and May 23 Orders. Tr. Vol. II at

       20, 31.




       Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018    Page 21 of 24
[28]   Given the record before us and our de novo review of the trial court’s

       interpretation of the statutes in question, we find no error with the trial court’s

       decision to deny Patrick’s motion to compel.


                                   II. Appellate Attorney’s Fees
[29]   Madison County asserts that Patrick’s appeal was frivolous and in bad faith and

       asks us to award appellate attorney’s fees. Indiana Appellate Rule 66(E)

       provides, in pertinent part: “The Court may assess damages if an appeal . . . is

       frivolous or in bad faith. Damages shall be in the Court’s discretion and may

       include attorney[’s] fees.” Our discretion to award attorney fees under Indiana

       Appellate Rule 66(E) is limited to instances when an appeal is permeated with

       meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of

       delay. Manous v. Manousogianakis, 824 N.E.2d 756, 767 (Ind. Ct. App. 2005)

       (citing Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003)).

       Additionally, while Indiana Appellate Rule 66(E) provides this court with

       discretionary authority to award damages on appeal, we must use extreme

       restraint when exercising this power because of the potential chilling effect upon

       the exercise of the right to appeal. Id. A strong showing is required to justify an

       award of appellate damages, and the sanction is not imposed to punish mere

       lack of merit, but something more egregious. Id. at 767-68.


[30]   Indiana appellate courts have formally categorized claims for appellate attorney

       fees into “procedural” and “substantive” bad faith claims. Id. at 768. Here,

       Madison County argues that an award of appellate attorney’s fees is warranted


       Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018   Page 22 of 24
       based on both procedural and substantive failures. “Procedural bad faith occurs

       when a party flagrantly disregards the form and content requirements of the

       rules of appellate procedure, omits and misstates relevant facts appearing in the

       record, and files briefs written in a manner calculated to require the maximum

       expenditure of time both by the opposing party and the reviewing court.” Id.

       “To prevail on a substantive bad faith claim, the party must show that the

       appellant’s contentions and arguments are utterly devoid of all plausibility.” Id.


[31]   While we agree with Madison County that Patrick did not strictly comply with

       our procedural rules, and that his appeal arguably “require[d] the maximum

       expenditure of time both by the opposing party and this reviewing court,” we

       nonetheless find that the flaws “do not rise to the level of egregiousness

       punishable under Appellate Rule 66(E).” Id. With regard to the claims of

       substantive bad faith, we cannot say that Patrick’s claim is utterly devoid of all

       plausibility. After the trial court issued the September 2016 Order that waived

       certain taxes, Madison County intervened and requested a corrected order,

       which was issued on March 31, but the parties were unable to agree on the

       effect of the March 31 Order and requested an order of clarification, which was

       issued on May 23. There was continued disagreement and yet another order

       was issued on October 9. At least two hearings were held during the course of

       the proceedings. At the September 11, 2017 hearing, counsel for Madison

       County acknowledged, “The word sale [in Indiana Code section 6-1.1-25-4(f)]

       appears to be the confusing part[,]” Tr. Vol. II at 6, and “[T]here’s trying to be a

       statutory change to clear this up so hopefully we’re not back here forever doing


       Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018   Page 23 of 24
       it again because this is clearly vexed us from very knowledgeable people on

       these laws[.]” Id. at 16. Given the statutes, claims, as well as the record before

       us, we conclude that an award of appellate attorney’s fees is not warranted in

       this case.14


[32]   Affirmed.


[33]   Baker, J., and Bradford, J., concur.




       14
         Madison County filed with this court a Motion to Strike, asking us to strike a portion of Patrick’s
       Appellant’s Brief, specifically the “Relief; unappealable taxes” section, which (1) refers to purported tax
       payments that Patrick had made following the trial court’s October 9 Order and (2) asserts, without factual or
       record support, that SRI, the private company involved in tax sales, including this one, has “unclean hands.”
       Appellant’s Br. at 26. As the section addresses matters occurring in the trial court after the date of the
       appealed order, and also makes unsupported allegations, we grant Madison County’s Motion to Strike by
       separate order.

       Court of Appeals of Indiana | Opinion 48A02-1710-MI-2493 | July 31, 2018                        Page 24 of 24
