ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Brian E. Hicks Jeffrey A. Lockwood
Indianapolis, Indiana Anderson, Indiana
SUPREME COURT OF INDIANA
TAX CERTIFICATE INVESTMENTS, INC., ) ) Appellant (Respondent Below ), ) ) 48S02-9809-CV-490 v. ) in the Supreme Court ) DAVID E. SMETHERS AND ELLEN E. ) 48A02-9704-CV-227 SMETHERS, ) in the Court of Appeals ) Appellees (Petitioners Below ).)Cause No. 48C01-9409-MI-338
APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Fredrick R. Spencer, Judge
SHEPARD, Chief Justice.
Landowners who do not pay their property taxes will eventually
find that the county acts to sell the land and collect its due.
This appeal concerns the sort of notice the delinquent owner needs
TCI raises two issues on appeal:
1. Whether Ellen was legally entitled to notice of the tax sale, and
2. Whether joint notice addressed to David and Ellen and mailed to the subject property was adequate notice to Ellen.
lien. Also in 1990, Ellen executed a quitclaim deed relinquishing
all right, title and interest in the property. That deed was never
recorded. As a result, David and Ellen Smethers remained joint
owners of public record.
In 1994, a court order for the sale of the property was entered due to nonpayment of real estate taxes. In May 1995, South Trust Estate & Trust Co. sent a notice to "Smethers, David E. and Ellen E." at the property address advising that the property had been sold at a tax sale in October of 1994 . Later in 1995, South Trust assigned its interest to TCI.
In October 1995, TCI sent a notice that TCI had filed a
petition for a tax deed, similarly addressed to "Smethers, David E.
and Ellen E." at the property address. David acknowledges that he
received both notices. However,
although he and Ellen spoke on a
he did not discuss either notice with Ellen for
several months. A court order directing issuance of a tax deed to
TCI was entered on October 12, 1995. On May 1, 1996, David and
Ellen filed a joint petition seeking invalidation of the tax deed.See footnote
The first notice announces the fact of the sale, the date the
redemption period will expire, and the date on or after which a tax
deed petition will be filed.
Ind. Code Ann. § 6-1.1-25-4.5 (West
The second notice announces that the purchaser has
petitioned for a tax deed. Ind. Code Ann. § 6-1.1-25-4.6 (West
I. Entitlement to Notice
issue dispositive, we assume without deciding that Ellen was
entitled to notice.
a tax deed. Indiana Code § 6-1.1-25-16 provides that a person
"may, upon appeal, defeat the title conveyed by a tax deed executed
under section 4 of this chapter only if . . . (7) the notices
required by IC 6-1.1-24-4, and sections 4.5 and 4.6 of this chapter
were not in substantial compliance with the manner prescribed in
David and Ellen Smethers argue that joint notice does not
satisfy the requirements of due process, even to joint owners of
record shown as residing at the same address. (Appellee's Br. at
12.) The U.S. Supreme Court held in Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950), that a state must
provide "notice reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action" prior
to taking steps that will affect a protected interest in life,
liberty, or property. Notice is constitutionally adequate when
"the practicalities and peculiarities of the case . . . are
reasonably met." Id. at 314-15.
We addressed the requirements of due process in the context of tax sale notice in Elizondo v. Read, 588 N.E.2d 501 (Ind. 1992). In Elizondo, the county auditor sent notices of redemption and of deed issuance to the Elizondos at the address on file with the auditor's office. Id. at 504. Because the Elizondos had moved twice, the notices were returned as unclaimed or undeliverable. Id. at 502. After publication of notice in local newspapers in
accordance with the applicable statute, the property was deeded to
the tax sale buyers. Id. Had the auditor checked personal
property records, or real estate transfer cards, she could have
found a current address for the Elizondos. Id. at 504. However,
the Elizondos had made no effort to update their address with the
auditor's office. Id. We held that "[a]ll that is required is .
. . notice to the owner's last known address, that is, the last
address of the owner of the specific property in question of which
the auditor has knowledge from records maintained in its office."
Id. Although the auditor had other addresses on file, some of
which happened to be more current, we held that sending notice to
the last address listed for the property at issue was sufficient.
Id. at 504-05.
Although the purchaser of the property rather than the county auditor was responsible for sending the notice in this case, the requirements for notice were the same. The purchasers sent notice to the recorded owners of the property, at their listed address. Had Ellen wished to receive notices at another address, she had ample opportunity to update the property records. She did not do so. (R. at 131-32.)See footnote 3 TCI was entitled to rely on the official
property records in complying with the statutory notice
requirement. It appropriately sent notices to joint owners of
record at the address those owners had provided.
Indiana caselaw has for some time held the property owner accountable for ensuring that official property records reflect a correct address. In Holland v. King, 500 N.E.2d 1229, 1237 (Ind. Ct. App. 1986), the court stated: "Our legislature intended to place the burden of notifying the county taxing authority of the taxpayer's correct address upon the taxpayer. If the county sends notice to the taxpayer's last known address as supplied by the taxpayer, and the notice reaches this address, then notice is sufficient . . . ." The controlling statute in Holland did not expressly state that notice sent to the last known address was sufficient. See id. at 1236. The case here is even stronger, where the "last known address" requirement has been specifically incorporated. Ind. Code Ann. § 6-1.1-25-4.5(b) (West Supp. 1998). The conclusion that it is the taxpayer's burden to update his or her address remains consistent with the statute as revised. See also Smith v. Breeding, 586 N.E.2d 932, 937 (Ind. Ct. App. 1992) (reiterating the holding of Clark v. Jones, 519 N.E.2d 158, 160 (Ind. Ct. App. 1988), that "the onus is upon the property owners to
[e]nsure that the auditor's records reflect the correct address .
. . .").
Furthermore, the statutory notice requirement for the
redemption period calls for "a copy of the notice by certified mail
to the parties described . . . at their last known addresses." Ind.
Code Ann. § 6-1.1-25-4.5(b) (West Supp. 1998) (emphasis added).
The singular terms "copy" and "notice" to the plural "parties"
would be incongruous with a legislative intent to require separate
notices to each individual party at the same address.See footnote
statutory notice requirement for a petition for a tax deed, Ind.
Code § 6-1.1-25-4.6(a), provides for notice "in the same manner as
provided in section 4.5" except as to the publication requirement
if the owner cannot be located, so again there is no apparent
legislative intent to require individual notice. A single notice
to joint owners of record listed at a single address suffices under
the plain language of the statute, as well as under the
requirements of due process.
For the aforementioned reasons, we reverse the judgment of the
trial court and direct judgment for the tax purchaser.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
was to be "set over" to David. (Id.) Although we have assumed without deciding that Ellen was entitled to notice, the claim that the decree of dissolution provided TCI with adequate notice of the need for separate mailings but did not impair Ellen's entitlement to notice is questionable. If anything, it suggested that Ellen was no longer an owner.
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