Andrew Patrick v. Painted Hills Association, Inc.

FILED
Oct 22 2019, 8:33 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

APPELLANT PRO SE ATTORNEY FOR APPELLEE
Andrew Patrick Glen E. Koch II
Anderson, Indiana Martinsville, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Andrew Patrick, October 22, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-SC-936
v. Appeal from the Morgan Superior
Court
Painted Hills Association, Inc., The Honorable Terry E. Iacoli,
Appellee-Plaintiff Magistrate
Trial Court Cause Nos.
55D03-1712-SC-1304
55D03-1811-SC-1183

Bailey, Judge.

Court of Appeals of Indiana | Opinion 19A-SC-936 | October 22, 2019 Page 1 of 7
 Case Summary
[1] In 2016, Andrew Patrick (“Patrick”) obtained tax deeds to three unimproved

lots in Morgan County (the “Property”). A neighborhood association—Painted

Hills Association, Inc. (the “Association”)—later filed two small-claims actions

against Patrick. The Association sought to collect unpaid dues for 2017 and

2018, attempting to enforce restrictive covenants that were recorded prior to the

tax sale. The trial court held a consolidated hearing on the claims, and

ultimately entered judgment in favor of the Association. Patrick filed a motion

to correct error, which the trial court denied. Patrick now brings a pro se appeal.

The dispositive issue is whether the restrictive covenants survived the tax sale.1

[2] We affirm.

Standard of Review
[3] “We generally review a trial court’s ruling on a motion to correct error for an

abuse of discretion.” Santelli v. Rahmatullah, 993 N.E.2d 167, 173 (Ind. 2013).

An abuse of discretion occurs if a ruling is clearly against the logic and effect of

the facts and circumstances or if the trial court erred on a matter of law. Id. at

175. Here, the motion to correct error related to the judgment in favor of the

Association. In support of that judgment, the court entered sua sponte findings

and conclusions, which control the issues they cover—with a general-judgment

1
As this issue is dispositive, we do not address arguments directed toward other aspects of the court’s ruling.

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 standard applicable to any other issue. See Ind. Trial Rule 52. We “shall not

set aside the findings or judgment unless clearly erroneous,” and must give “due

regard . . . to the opportunity of the trial court to judge the credibility of the

witnesses.” T.R. 52(A). In conducting our review, we look to whether the

evidence supports the findings and the findings support the judgment. See State

v. Int’l Bus. Machs. Corp., 51 N.E.3d 150, 158 (Ind. 2016). Moreover, although

we defer to findings of fact, we “do not defer to conclusions of law.” Id.

[4] “The meaning of a statute is a question of law [that] is subject to de novo

review.” ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195

(Ind. 2016). “If a statute is unambiguous, we may not interpret it, but must give

the statute its clear and plain meaning. If a statute is ambiguous, however, we

must ascertain the legislature’s intent and interpret the statute so as to effectuate

that intent.” Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942 (Ind.

2001) (cleaned up). “[A] statute is ambiguous when it allows more than one

reasonable interpretation.” Day v. State, 57 N.E.3d 809, 813 (Ind. 2016).

Discussion and Decision
[5] Patrick does not dispute that, prior to the tax sale, the Property was subject to

recorded restrictive covenants that the Association could enforce.2 The dispute

2
“Restrictive covenants are used to maintain or enhance the value of land by reciprocal undertakings that
restrain or regulate groups of properties.” Villas W. II of Willowridge Homeowners Ass’n, Inc. v. McGlothin, 885
N.E.2d 1274, 1278 (Ind. 2008). Restrictive covenants “are common in condominium or other ‘common-
interest’ housing subdivisions. . . . Property owners who purchase their properties subject to such restrictions

Court of Appeals of Indiana | Opinion 19A-SC-936 | October 22, 2019 Page 3 of 7
 is about the effect of the tax sale. As to the instant tax deeds, the parties agree

that the following statute applies—but they proffer competing readings:

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 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.

Ind. Code § 6-1.1-25-4(f) (emphasis added).

[6] Patrick focuses on the first bolded portion of the statute. He contends that

restrictive covenants are encumbrances, and that he received the Property “free

and clear of all liens and encumbrances created or suffered before or after the

tax sale.” Id. The parties argue about whether a covenant should be considered

give up a certain degree of individual freedom in exchange for the protections from living in a community of
reciprocal undertakings.” Id. at 1278-79.

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 an “encumbrance.” Regardless, there is an exception to the general rule that a

tax deed confers free and clear interest—i.e., “subject to subsection (g), the

estate is subject to . . . all easements, covenants, declarations, and other deed

restrictions shown by public records.” Id. (emphasis added). The Association

argues this exception preserves the recorded restrictive covenants.

[7] Patrick counters that this exception is itself “subject to subsection (g).” Id. That

subsection provides as follows:

A tax deed executed under this chapter for real property sold in a
tax sale:

(1) does not operate to extinguish an easement recorded
before the date of the tax sale in the office of the recorder
of the county in which the real property is located,
regardless of whether the easement was taxed under this
article separately from the real property; and

(2) conveys title subject to all easements recorded before
the date of the tax sale in the office of the recorder of the
county in which the real property is located.

I.C. § 6-1.1-25-4(g). Patrick essentially argues that subsection (g) focuses only

on easements, and, because restrictive covenants are not easements, this

subsection limits the application of subsection (f) to only easements—despite

subsection (f) specifically listing more than just easements. Arguing subsection

Court of Appeals of Indiana | Opinion 19A-SC-936 | October 22, 2019 Page 5 of 7
 (f) does not apply, Patrick ultimately contends the Association was obligated to

follow redemption procedures to retain enforceable restrictive covenants.3

[8] Patrick misreads the subordinating language “subject to” that refers to

subsection (g). “A dependent phrase that begins with subject to indicates that the

main clause it introduces or follows does not derogate from the provision to

which it refers.” Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 126 (2012). In other words, this subordinating

language “merely shows which provision prevails in the event of a clash—but

does not necessarily denote a clash of provisions.” Id. Thus, subsection (f) does

not contradict any easement-related language in subsection (g), and subsection

(g) does not limit the application of subsection (f) to easements.

[9] Moreover, the Indiana General Assembly also provided for the survival of

restrictive covenants in a separate section of the Indiana Code:

A tax deed executed under this section 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

3
Redemption is a procedure through which any person may obtain title to tax-delinquent property. See Ind.
Code § 6-1.1-25-1. Before a tax deed is issued, however, a person with “substantial property interest of public
record” is entitled to notice. I.C. § 6-1.1-25-4.5. A person has substantial property interest of public record if
the person possesses “title to or interest in a tract that is within the tract’s chain of record title” and—“not
later than the hour and date a sale is scheduled to commence under IC 6-1.1-24”—the interest is either
“recorded in the office of the county recorder for the county in which the tract is located” or “available for
public inspection and properly indexed in the office of the circuit court clerk in the county in which the tract
is located.” I.C. § 6-1.1-23.9-3(a) (formerly codified at I.C. § 6-1.1-24-1.9).

Court of Appeals of Indiana | Opinion 19A-SC-936 | October 22, 2019 Page 6 of 7
 assessments that accrue subsequent to the sale. However, the
estate is subject to all easements, covenants, declarations, and
other deed restrictions and laws governing land use, including
all zoning restrictions and liens and encumbrances created or
suffered by the purchaser at the tax sale.

I.C. § 6-1.1-25-4.6(k) (emphasis added). Statutes, such as those at issue here,

that relate to the same subject matter are in pari materia and “should be

construed together to produce a harmonious statutory scheme.” Campbell

Hausfeld/Scott Fetzer Co. v. Johnson, 109 N.E.3d 953, 958 (Ind. 2018) (quotation

marks omitted). Rather than produce a harmonious statutory scheme, Patrick’s

argument on appeal would obviate Indiana Code Section 6-1.1-25-4.6(k).

[10] Still, Patrick cites several cases that concern tax sales and redemption

procedures. He also cites cases about restrictive covenants. However, none of

the cited authorities involves statutory analysis concerning the survival of

covenants.

[11] The statutes are unambiguous. In light of the statutory exception for restrictive

covenants, we conclude that the instant covenants survived the tax sale. In

short, a dominant estate holder is not required to redeem its interest following a

tax sale. The trial court did not err by ruling in favor of the Association, and we

affirm its denial of Patrick’s motion to correct error.

[12] Affirmed.

Najam, J., and May, J., concur.

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