ATTORNEY FOR PETITIONER:                            ATTORNEYS FOR RESPONDENT:
SHAWN F. SULLIVAN                                   GREGORY F. ZOELLER
ATTORNEY AT LAW                                     ATTORNEY GENERAL OF INDIANA
South Bend, IN                                      ANDREW T. GREIN
                                                    DEPUTY ATTORNEY GENERAL
                                                    Indianapolis, IN

                                                                               FILED
                                  IN THE                                  Dec 30 2016, 2:09 pm

                                                                               CLERK
                            INDIANA TAX COURT                              Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




LAKE COUNTY TRUST CO., TRUST NO. 6,               )
(FLOWERS FOR HEAVEN, INC.)                        )
                                                  )
       Petitioner,                                )
                                                  )
                       v.                         ) Cause No. 02T10-1604-TA-00010
                                                  )
ST. JOSEPH COUNTY ASSESSOR,                       )
                                                  )
       Respondent.                                )


                     ORDER ON RESPONDENT’S MOTION TO DISMISS

                                   FOR PUBLICATION
                                   December 30, 2016

WENTWORTH, J.

       This matter comes before the Court on the St. Joseph County Assessor’s Motion

to Dismiss (Motion) Lake County Trust Co., Trust No. 6 (Flowers for Heaven, Inc.) (the

“Trust”)’s original tax appeal for failure to timely file the certified administrative record.

Upon review, the Court DENIES the Assessor’s Motion.

                            FACTS AND PROCEDURAL HISTORY

       On April 25, 2016, the Trust initiated an original tax appeal challenging a final

determination of the Indiana Board of Tax Review. In its Petition, the Trust requested
that the Indiana Board prepare the certified administrative record and stated that it

would file it with the Court within thirty days of being notified that it was complete as

required by Tax Court Rule 3(E).       (See Pet’r V. Pet. Original Tax Appeal of Final

Determination Ind. Bd. Tax Review at ¶ 8.)

       On May 6, 2016, the Indiana Board notified the Trust by letter that the certified

administrative record was complete. (See Resp’t. Mot. Dismiss (“Resp’t Mot.”), Ex. A at

¶ 8.) On June 23, 2016, the Court held a case management conference, at which time

it established the parties’ briefing schedule. On September 1, 2016, the Trust filed its

brief on the merits, but it had not yet filed the certified administrative record. (See Pet’r

V. Resp. Resp’t Mot. Dismiss & Request for Leave to File Certified Record (“Pet’r

Resp.”) at ¶¶ 1-3, 9.) The Assessor filed its Motion on September 7, 2016. The Trust

responded to the Motion on September 13, 2016, and filed the certified administrative

record that same day. The Court held oral argument on the Motion on October 20,

2016.1 Additional facts will be provided as necessary.

                                  LAW AND ANALYSIS

       There is no dispute that the Trust failed to timely file the certified administrative

record. (See Pet’r Resp. at 1-2.) The Assessor therefore claims that the Trust’s appeal

should be dismissed. (Resp’t Mot. at ¶ 6.) The dispositive issue before the Court,

however, is whether the Assessor’s Motion raising its objection was itself timely.

       The Assessor contends that its objection was timely under Indiana Trial Rule

12(B) because it filed its Motion within 20 days after the Trust filed its brief. (See Oral

Arg. Tr. at 13-15.) Indiana Trial Rule 12(B) provides that defenses shall be made by


1
  The Court wishes to thank the staff and students at South Side High School in Fort Wayne,
Indiana, for hosting the oral argument in this case.
                                             2
motion either “before pleading if a further pleading is permitted or within twenty [20]

days after service of the prior pleading if none is required.” Ind. Trial Rule 12(B). The

word “pleadings” is expressly defined as complaints, answers, and similar filings. Ind.

Trial Rule 7(A). Here, the Assessor’s objection was made six days after the Trust filed

its brief on the merits, but because a brief is not a pleading, Indiana Trial Rule 12(B)

does not shelter the Assessor’s objection from waiver. See T.R. 12(B).

       The Indiana Supreme Court has stated that a party may move to dismiss a case

pursuant to Trial Rule 12(B)(1) when a procedural prerequisite is not timely performed,

even though the Court’s subject matter jurisdiction is not implicated. See Packard v.

Shoopman, 852 N.E.2d 927, 931-32 (Ind. 2006). In addition, the Supreme Court has

provided that any objection of this type can be waived if not raised at the “appropriate

time.” Id. at 932. Although the Supreme Court did not provide a bright line rule for

determining the “appropriate time,” it did explain that an objection must be made at the

“earliest opportunity.” Id.

       Whether a filing is timely does not implicate the merits of a controversy. See,

e.g., id. at 931-32. Thus, it follows that the “earliest opportunity” to object must precede

the furtherance of the merits. See id. at 928, 930-32 (providing that an objection to an

untimely-filed petition is waived when first raised in a response brief on the merits);

Jones v. Jefferson Cnty. Assessor, 6 N.E.3d 1048, 1049-50 (Ind. Tax Ct. 2014) (finding

that an objection to the failure to request the certified administrative record is waived

when first raised in a response brief on the merits); Bedford Apartments v. Jean, 843

N.E.2d 78, 79-81 (Ind. Tax Ct. 2006) (denying a motion to dismiss filed after briefing

and oral argument that objected to an untimely filed certified administrative record).



                                             3
Accordingly, the Court finds that an objection to the untimely filing of the certified

administrative record in an appeal from a final determination of the Indiana Board must

itself be filed before the merits of a case have been furthered. Here, the Assessor filed

its Motion after the Trust filed its brief; at that point, however, the merits of the case had

already been furthered. Consequently, the Assessor waived its objection to the Trust’s

untimely filing of the certified administrative record.

                                           CONCLUSION

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

will order a revised briefing schedule by separate cover.

       SO ORDERED this 30th day of December, 2016.




                                                          Martha Blood Wentworth
                                                          Judge, Indiana Tax Court


Distribution: Shawn F. Sullivan, Andrew T. Grein




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