FILED
Jun 12 2017, 9:42 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Jon L. Orlosky CROWN CASTLE SOUTH LLC
Muncie, Indiana Christopher S. Roberge
Elizabeth A. Roberge
Roberge Law
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David L. Jenner and Vickie June 12, 2017
Jenner, Court of Appeals Case No.
Appellants-Petitioners, 53A05-1606-MI-1415
Appeal from the Monroe Circuit
v. Court
The Honorable E. Michael Hoff,
Bloomington Cellular Services, Judge
Inc., Trial Court Cause No.
Appellee-Respondent, 53C01-1409-MI-1703
and
Crown Castle South LLC,
Appellee-Intervenor.
Bailey, Judge.
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Case Summary
[1] David L. Jenner and Vickie Jenner (“the Jenners”) appeal the trial court’s
judgment in favor of Crown Castle South, LLC (“Crown Castle”), which
declared the Jenners’ tax deed to certain real property void. The Jenners raise
three issues for our review, which we consolidate and restate as whether the
trial court abused its discretion when it granted Crown Castle’s motion for relief
from judgment under Trial Rule 60(B) and found the Jenners’ tax deed void for
lack of statutory compliance.
[2] We affirm.
Facts and Procedural History
[3] In December of 1988, Bloomington Cellular Services, Inc. (“Bloomington
Cellular”) became the owner of certain real property in Bloomington on West
Vernal Pike (“the Property”) and had its interest in the Property recorded.
Bloomington Cellular subsequently merged with Westel-Indianapolis Company
(“Westel”), though the chain of title to the Property did not reflect the merger.
At some point, a 228-foot tall cellular communications tower was built on the
Property.
[4] In 1999, Westel leased the maintenance and operation of the cell tower to
Crown Castle. In March of 2000, Westel and Crown Castle entered into a
supplemental lease agreement. Crown Castle recorded the supplemental lease
agreement with the Monroe County Recorder in May of 2000. While the
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supplemental lease agreement refers to the 1999 lease agreement, the 1999 lease
agreement was not recorded. The supplemental lease agreement was not placed
in the chain of title for the Property in which Bloomington Cellular’s ownership
of the land had been recorded. In August of 2008, Crown Castle entered into a
sublease agreement with T-Mobile Central LLC (“T-Mobile”) for T-Mobile to
use the cell tower. The sublease agreement was recorded with the Monroe
County Recorder in April of 2009, but it, too, was not placed in the chain of
title with Bloomington Cellular’s interest.
[5] On October 2, 2014, the Monroe County Treasurer held a tax sale. At that tax
sale, the Jenners purchased the tax sale certificate for the Property. The Jenners
then did a title search on the Property and discovered only Bloomington
Cellular as an interest holder in the Property’s chain of title. Accordingly, the
Jenners provided Bloomington Cellular with the required notices, and, when
Bloomington Cellular failed to redeem the Property, in November of 2015 the
Jenners obtained a tax deed.
[6] Less than one month later, the Jenners contacted Crown Castle for the first time
regarding the Jenners’ claim of ownership of the Property. Crown Castle then
attempted to negotiate with the Jenners regarding Crown Castle’s rights to the
cell tower, but, in February of 2016, the Jenners rejected Crown Castle’s offer.
Later that month, Crown Castle intervened in the Jenners’ tax-sale proceedings
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and moved, under Indiana Trial Rule 60(B), to have the court set aside the tax
deed as void.1
[7] The court held a hearing on Crown Castle’s motion in May of 2016. At that
hearing, Crown Castle stated that it had two recorded interests in the Property,
the 2000 supplemental lease agreement and the 2008 T-Mobile sublease
agreement. However, Crown Castle acknowledged that, absent an online
search of the Monroe County Recorder’s office for either Westel or Crown
Castle specifically, those interests would not have been discovered. And Crown
Castle further acknowledged that it was “not sure there would be a basis for [the
Jenners] to even make that search” based only on a review of the Property’s
chain of title. Tr. at 6.
[8] Nonetheless, Crown Castle further argued that the Jenners should have known
of Crown Castle’s possible interests not based on the Property’s chain of title
but, rather, based on conspicuous signage at the Property that identified Crown
Castle as the operator of the cell tower. That signage also provided Crown
Castle’s contact information. Crown Castle offered a photograph of the
signage, which was dated April 16, 2015, to the court as a “demonstrative
exhibit” rather than as an evidentiary exhibit. Id. at 7. The Jenners did not
1
The trial court concluded that, although Crown Castle’s motion was outside the sixty-day period provided
for under Indiana Code Section 6-1.1-25-4.6, the motion was nonetheless permissible in accordance with the
timeframe described under Indiana Trial Rule 60(B). On appeal, the Jenners do not challenge the trial
court’s conclusion on that issue and we do not consider it. See Ind. Appellate Rule 46(A)(8)(a).
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object to this procedure or to Crown Castle’s display of the photograph to the
court.
[9] Rather, the Jenners argued that the photograph did not deserve to be given
weight by the court for several reasons, namely: there was no indication as to
where on the property the signage had been placed; there was “no evidence that
these signs were readily available to the public” or “readily accessible…without
trespassing”; and, despite the photograph’s apparent date of April 16, 2015,
“there is no evidence as to when [the signs were] placed.” Id.at 11. The
Jenners further argued that “an interest that was recorded outside of the chain
of title…is no notice” to third parties. Id. at 15.
[10] Following the parties’ arguments, the court took the matter under advisement.
Subsequently, the court granted Crown Castle’s motion for relief from
judgment and declared the tax deed void for lack of notice to a substantially
interested party during the period of redemption. The court stated that Crown
Castle’s signage on the Property put the Jenners on inquiry notice of Crown
Castle’s possible interests, and, as the Jenners did not follow up on that notice
and inform Crown Castle of the tax sale during the redemption period, the tax
deed was therefore void. This appeal ensued.
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Discussion and Decision
The Nature of the Jenners’ Appeal
[11] The Jenners appeal the trial court’s order granting Crown Castle’s motion for
relief from judgment under Trial Rule 60. An order for relief from judgment
under Trial Rule 60 is an equitable remedy within the trial court’s discretion. In
re Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind. 2013). We review an order
upon a motion for relief from judgment for an abuse of the trial court’s
discretion. Id. An abuse of discretion occurs when the trial court’s order is
clearly against the logic and effect of the facts and inferences supporting the
judgment. Z.S. v. J.F., 918 N.E.2d 636, 639 (Ind. Ct. App. 2009).
[12] Here, Crown Castle sought relief from judgment—namely, the trial court’s
order granting the Jenners a tax deed—on the basis that it had not been served
with notice of the Jenners’ request for the tax deed as required by our tax sale
statutes. The trial court concluded that the Jenners’ notices were not in
substantial compliance with the statute because no notice of the Jenners’
petition for a tax deed had been given to Crown Castle. The court found that
Crown Castle’s interest in the property had been recorded and was available for
inspection, and that Crown Castle’s interest in the leasehold was further made
clear through the placement of signs on the property. Thus, the court reasoned,
the tax deed was void because the Jenners did not comply with the
requirements of Indiana Code section 6-1.1-25-4.5 for notice prior to the
issuance of a tax deed. The court also concluded that the Jenners had been
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placed on additional notice of the existence of Crown Castle’s interest because
of language on a sign that Crown Castle had placed on a fence on the property.
The sign requested that parties with inquiries regarding leases or other matters
contact Crown Castle, and provided contact information.
[13] The Jenners contend that the trial court erred. The Jenners argue that Crown
Castle’s lease, though concededly recorded validly, was recorded outside the
chain of title. As a result, the Jenners contend, they were unable to identify
Crown Castle as an interest holder and thus were unable to provide notice of
their petition for a tax deed under Section 6-1.1-25-4.5, so that they had
substantially complied with the notice requirements. The Jenners argue that
they were entitled to the same treatment as a bona fide purchaser for value; that
they consequently were not required to provide notice to Crown Castle; and
that the trial court erred when it determined that the Jenners lacked that status
and thus concluded that the Jenners had failed to provide notice and that their
deed was void. The Jenners also argue that the trial court erred in giving any
weight to the sign on the fence next to the tower, and that the trial court had
thereby abused its discretion when it concluded that the Jenners had sufficient
information from which to identify Crown Castle and provide notice of the tax
deed petition.
Nature of Bona Fide Purchasers and Tax-Sale Purchasers
[14] Because the Jenners premise their appeal in large part upon whether they are
entitled to treatment as bona fide purchasers for value, the resolution of the
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appeal must account for the nature of a bona fide purchaser for value and the
rights of a tax-sale purchaser.
[15] A bona fide purchaser for value is entitled to protection from interest-holders
outside the chain of title as a matter of equity because she or he has made a
purchase “for a valuable consideration without notice of a legal defect.” Keybank
Nat’l Ass’n v. NBD Bank, 699 N.E.2d 322, 327 (Ind. Ct. App. 1998) (emphasis
added). “A record outside the chain of title does not provide notice to bona fide
purchasers for value.” Id. That is, a bona fide purchaser for value without notice
of a competing interest in the chain of title is an innocent buyer, and thus is
entitled to protection against those interests not readily discoverable through a
search through a given chain of title.
[16] The very nature of a tax sale means that a tax-sale purchaser cannot be a bona
fide purchaser for value. Purchase of an interest in property through a tax sale is
inherently made with notice of a significant impediment to clear title: namely,
that a lien arose because tax payments for the property at issue were delinquent.
Also unlike a bona fide purchaser for value, the tax-sale purchaser is not
purchasing title to the land in a standard market transaction. She or he is
instead paying the outstanding tax owed on the land and receives in exchange a
certificate evidencing the sale. “After the expiration of the redemption period
… but not later than three (3) months after the expiration of the period of
redemption,” a tax sale purchaser may “file a verified petition” seeking the
issuance of a tax deed by the court in which the judgment of sale was entered.
I.C. § 6-1.1-25-4.6(a).
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[17] Thus, in exchange for paying the past-due taxes, the tax-sale purchaser does not
as a matter of right gain title to the land. Rather, usually by risking pennies on
the dollar relative to the fair-market value of the land, the tax-sale purchaser
obtains a legal right to later seek a deed to the land—if the tax-sale purchaser
complies with the requirements set forth by the Indiana General Assembly in
the tax-sale statutes. See, e.g., I.C. § 6-1.1-25-4.5 (setting forth the numerous
elements that must be satisfied for a tax-sale purchaser to obtain a valid tax
deed).
[18] Thus, a tax-sale purchaser is not only not a bona fide purchaser for value, the
tax-sale purchaser has not acquired any kind of title at all by paying the
redemption amount due at the tax sale. Rather, the right obtained through a
tax sale is to engage in legal proceedings that might result in obtaining a tax
deed to the land. Those proceedings might also result in a full or partial refund
of the money paid at the tax sale if a competing interest holder redeems the
property. I.C. §§ 6-1.1-25-4.6(h) & (i). Or, if the notice requirements of the
statute are not satisfied, the proceedings may result in the tax-sale purchaser
losing both the opportunity to obtain a tax deed and the money paid at the tax-
sale. I.C. § 6-1.1-25-4.6(j) (providing that “the court shall not order the return
of the purchase price or any part of the purchase price if: (1) the purchaser of
the certificate of sale … has failed to provide notice or has provided insufficient
notice as required by section 4.5 of this chapter” where the sale is otherwise
valid).
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[19] This speculative approach in which a tax-sale purchaser buys not title itself, but
a chance to obtain title (generally by means of a lien), is a common one among
our sister States. Patton and Palomar on Land Titles § 490 (3d ed. 2003). “Many
states require strict compliance with the statutory tax sale procedure in order to
effectively divest the title of the tax debtor and bar the right of redemption.” Id.
And because tax sales result in forfeiture, which the law disfavors generally,
Gates v. Houston, 897 N.E.2d 532, 536 (Ind. Ct. App. 2008) (citing Skendzel v.
Marshall, 261 Ind. 226, 231, 301 N.E.2d 641, 644 (1973)), “courts generally
strictly construe the applicable statutes in favor of the landowner.” Patton and
Palomar on Land Titles § 490. In other words, the tax-sale purchaser is gambling
that the money paid at a tax sale and her or his efforts to comply with the
applicable statutes, taken together with prior interest-holders’ apparent lack of
concern for or inability to continue their ownership of property, will result in
fee simple ownership of land. While this gamble may routinely pay off for tax-
sale purchasers, the purchase of a chance to own a property interest at a tax sale
is a far cry from the type of purchase made by a bona fide purchaser for value.
Construction of the Tax Sale Statutes
[20] Keeping in mind the nature of a tax sale as compared to a sale of property to a
bona fide purchaser for value, an examination of the statutory scheme
underlying the Jenners’ arguments is in order.
[21] Seeking to step into the shoes of a bona fide purchaser for value, the Jenners
raise issues of statutory construction with respect to the tax-sale statute.
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Statutory interpretation is a pure question of law, which is reviewed de novo.
J.D.M. v. State, 68 N.E.3d 1073, 1077 (Ind. 2017). “When interpreting a statute,
our primary goal is to fulfill the legislature’s intent.” Day v. State, 57 N.E.3d
809, 812 (Ind. 2016). We start with the text of the statute, giving words their
plain meaning. ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192,
1196 (Ind. 2016); see also I.C. § 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.” State v. Oddi-Smith, 878
N.E.2d 1245, 1248 (Ind. 2008). Where the statute is ambiguous, we “turn to
our canons of statutory construction” and seek “to resolve the ambiguity in the
manner most consistent with the discernible legislative intent.” Consumer
Attorney Servs., P.A. v. State, No. 49S05-1703-PL-161, slip op. at 5 (Ind. Mar. 21,
2017); see also Day, 57 N.E.3d at 813.
[22] However, before applying any rules of construction, we must first “determine
whether the Legislature has spoken clearly and unambiguously on the point in
question.” City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007). “When a
statute is clear and unambiguous, we need not apply any rules of construction
other than to require that words and phrases be taken in their plain, ordinary,
and usual sense.” Id. It is only when there is ambiguity—“when a statute is
susceptible to more than one interpretation”—that we apply other canons of
construction. Id.
[23] The Jenners argue that the trial court erroneously interpreted the tax-sale
statutes because it did not afford the Jenners bona fide purchaser status for
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purposes of the notice requirements of Section 6-1.1-25-4.5. The title conveyed
by a tax deed may be defeated if the notices required by Section 6-1.1-25-4.5(a)
“were not in substantial compliance with the manner prescribed” by statute.
I.C. § 6-1.1-25-16(7). As to which parties may be entitled to notice, our statutes
provide:
Except as provided in subsection (d), a purchaser or the
purchaser's assignee is entitled to a tax deed to the property that
was sold only if:
***
(3) not later than six (6) months after the date of the sale:
(A) the purchaser or the purchaser's assignee…
gives notice of the sale to the owner of record at the time of the
sale and any person with a substantial property interest of public
record in the tract or item of real property.
Ind. Code § 6-1.1-25-4.5(a). As used in the statute, “a substantial property
interest of public record” is defined to mean an “interest in a tract possessed by
a person and recorded in the office of a county recorder or available for public
inspection in the office of a circuit court clerk no later than the hour and date
the [tax] sale is scheduled to commence.” I.C. § 6-1.1-24-1.9. Regarding
parties in possession of land who have not recorded their interest, the statute
provides, “The notice [to be sent to other interest-holders] under this section …
[is] not required for persons in possession not shown in the public records.”
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I.C. § 6-1.1-25-4.5(i). The statute does not identify a tax-sale purchaser as
holding status equivalent to a bona fide purchaser for value, and does not state
that a tax-sale purchaser need satisfy only the limited requirements applicable to
a bona fide purchaser for value.
[24] The Jenners notified all parties whose interests were recorded in the chain of
title for the property—that is, they provided notice to the same extent to which
bona fide purchasers of land for value are considered to have notice of prior
interests. The Jenners acknowledge that they were not in fact bona fide
purchasers, but suggest that it is reasonable they be afforded that treatment, and
thus request that their notice obligation under the tax-sale statutes be construed
in this manner.
[25] The General Assembly spoke clearly and unambiguously in the language of
Subsection 6-1.1-25-4.5(a). Our Legislature stated that a party seeking a tax
deed must provide notice to “any person with a substantial property interest of
public record” (emphasis added). “Any” means exactly what it says: “one
indifferently out of more than two”; “one, some, or all indiscriminately of
whatever quantity”; “one, no matter what one.” Any, Webster’s Third New
International Dictionary of the English Language Unabridged (2002).
[26] The plain language of the notice provisions of the tax-sale statutes is dispositive
here. The notice provisions make clear that the Jenners were required to
provide notice to Crown Castle: notice must be provided to any person who
holds a substantial interest of public record. See I.C. § 6-1.1-25-4.5(a). The
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statute makes no provision for bona fide purchaser treatment of a tax deed
petitioner, and makes no allowance for the failure of a tax-sale purchaser to find
a recorded interest that lies outside the chain of title. Nor does the statute
contemplate a hierarchy of recorded interests, such that some property interests
are somehow “more” or “really” recorded and thus deserving of notice,
whereas others are not. See I.C. § 6-1.1-24-1.9.
[27] Indeed, that the Legislature meant “any” to mean “all” and “every” here,
without regard to whether the property interest was recorded within a parcel of
land’s chain of title, is underscored by the Legislature’s drafting of the tax-sale
statute without using the phrase “chain of title.” The Indiana General
Assembly has used exactly that phrase in the marketable title statute, I.C. § 32-
20-3-1, and this Court has recognized that one effect of the marketable title
statute is that competing chains of title may result in the supersession of one
line of property interests over another. See, e.g., Roberts v. Feitz, 933 N.E.2d 466,
476-78 (Ind. Ct. App. 2010) (concluding that a party’s title was superior to an
older, parallel chain of title, based in part upon the precision of the legal
description of the land).
[28] Yet the General Assembly did not use “chain of title” in the tax-sale statute.
The Legislature crafted the statute to require that tax sale purchasers provide
notice to any person with a substantial, publicly recorded interest as that is
defined in Section 6-1.1-24-1.9. This requirement reflects the very different
status of a tax-sale purchaser vis-à-vis a bona fide purchaser for value, is
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consonant with the speculative nature of the market created by the tax-sale
statutory scheme, and comports with Indiana law holding forfeiture in disfavor.
[29] The Jenners note that a requirement of notice to any person with a substantial
interest in the property of public record places a significant burden upon tax-
sale purchasers: if notice must be provided to any person with a substantial
property interest of public record whether the person’s interest lies inside or
outside the chain of title, then tax-sale purchasers must search every document
in the recorder’s office to be sure that they had provided notice to every person
with a recorded interest. Yet a tax-sale purchase is a gamble, and, given the
ante i.e. the low purchase price at a tax sale—often just pennies on the dollar
relative to the fair market value of a subject property—the Legislature balanced
the tax-sale purchaser’s investment against the risk of a forfeiture by the existing
interest holders. The Legislature thus intended to impose a greater burden
upon tax-sale purchasers, thereby safeguarding to a significant degree existing
property owners’ rights to their land. Requiring a tax-sale purchaser to search
outside the chain of title—even if it means searching thousands of records in the
county recorder’s office—is one of the safeguards created by the statute.
[30] Accordingly, there was no abuse of discretion in the trial court’s conclusion that
the statute required the Jenners’ tax deed be declared void, and thus there was
no error in the trial court’s decision to grant Crown Castle’s motion to set aside
the judgment.
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Whither Notice?
[31] The plain language of the tax-sale statute is sufficient on its own to resolve this
appeal. But because the trial court also held that the Jenners were on inquiry
notice of Crown Castle’s interest, a matter that seems likely to recur in future
litigation, this facet of the trial court’s order will also be addressed.
[32] The Jenners contend that the trial court abused its discretion when it found that
they were on inquiry notice, by virtue of a sign posted on a fence surrounding
the cellular tower on the property, of Crown Castle’s recorded interest in the
property. The trial court erred on this point, because holding that the Jenners
were somehow required to make a personal, visual inspection of the land runs
counter to the provisions of the tax-sale statute.
[33] The statute provides, “The notice [to be sent to other interest-holders] under
this section … [is] not required for persons in possession not shown in the
public records.” I.C. § 6-1.1-25-4.5(i). That is, the tax-sale statute exposes tax-
sale purchasers to challenges from parties with recorded claims to the
property—but there is no notice requirement to those who possess the property
without a recorded interest. The tax-sale statutes do not require notice to
parties in physical possession unless those parties hold a recorded interest in the
land.
[34] Thus, imputing an inspection requirement where there is no notice requirement
creates a legal requirement that is not present in the statute. It also runs counter
to another of the goals of the tax-sale statute: to expedite the payment of past-
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due taxes, allowing Indiana’s state and local governments to collect money they
are owed and, presumably, to recommence collecting property tax on a given
parcel. The plain language of the statute precludes the creation of an inspection
requirement because the statute expressly excludes from the tax-sale purchaser’s
duties the necessity of providing notice to parties in possession with unrecorded
interests—that is, parties whose interest in the land can be discovered only by a
physical inspection.
[35] Simply put, whether a tax-sale purchaser has notice of a physical occupant of
the land is beside the point in this case. The statute delineates the extent of a
tax-sale purchaser’s obligation to provide notice to other interest-holders in the
property. In doing so, the statute expressly declines to impose a requirement to
notify parties in possession without a substantial interest of public record.
Neither this court nor the trial court are in positions to impose an inspection
requirement upon tax-sale purchasers who, as the Jenners note, may be
trespassing upon the land prior to the issuance of a tax deed. To the extent the
trial court’s order would impose such a requirement, that construction of the
statute was in error.
Conclusion
[36] Because Crown Castle satisfied the statutory definition of a person with a
substantial interest of public record in the property, it was entitled to notice
under our tax-sale statutes, and the trial court did not err when it concluded that
the Jenners’ failure to provide notice of their tax-deed petition required that the
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tax deed be declared void. There is, however, no requirement for inspection
inherent in the statute, and thus the trial court erred when it concluded that the
Jenners were on inquiry notice of Crown Castle’s interest. The trial court did
not abuse its discretion when it granted Crown Castle’s motion for relief from
judgment with respect to the issuance of the Jenners’ tax deed.
[37] Affirmed.
Vaidik, C.J., concurring in result with separate opinion.
Robb, J., dissenting with separate opinion.
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ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Jon L. Orlosky CROWN CASTLE SOUTH LLC
Muncie, Indiana
Christopher S. Roberge
Elizabeth A. Roberge
Roberge Law
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David L. Jenner and Vickie June 12, 2017
Jenner, Court of Appeals Case No.
Appellant-Petitioners, 53A05-1606-MI-1415
Appeal from the Monroe Circuit
v. Court
The Honorable E. Michael Hoff,
Bloomington Cellular Services, Judge
Inc., Trial Court Cause No.
Appellee-Respondent, 53C01-1409-MI-1703
Crown Castle South LLC,
Appellee-Intervenor
Vaidik, Chief Judge, concurring in result.
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[1] I join Judge Bailey in voting to affirm the trial court’s decision, but I
respectfully disagree with his interpretation of Indiana Code sections 6-1.1-25-
4.5 and -4.6.
[2] Those statutes require a tax-sale purchaser seeking a tax deed to provide notice
to “the owner of record at the time of the sale and any person with a substantial
property interest of public record in the tract or item of real property.” Judge
Bailey reads this language to require notice to any person who has recorded an
interest in the subject property, even if the interest is recorded “outside the
chain of title” and the only way for the tax-sale purchaser to discover the
interest at the recorder’s office is to “search every document” in the office. Slip
op. at 15 (emphasis added). He concludes that this is a “safeguard” for existing
property owners, intentionally created by the General Assembly. Id. I cannot
agree.
[3] “The purpose of the tax sale statute is obvious—to collect delinquent property
taxes.” Ransburg v. Kirk, 509 N.E.2d 867, 876 (Ind. Ct. App. 1987), reh’g denied.
But if the only way for tax-sale purchasers to achieve certainty and
predictability is to carefully review every single document in the relevant
recorder’s office, tax-sale purchases will become much more risky and
expensive, and the collection of delinquent taxes will become much more
difficult. Therefore, I simply cannot conclude that the legislature, which is well
aware of the volume of documents on file at the recorder’s offices in this state,
intended to establish such a requirement.
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[4] Instead, I interpret the statutes, as does Judge Robb, to mean that the holder of
a recorded interest is entitled to notice only if the tax-sale purchaser knows of
the recording or would become aware of it in the exercise of reasonable
diligence. Reasonable diligence includes performing all available index and
electronic searches for recorded documents (using property-specific and party-
specific search criteria) and conducting an in-person visit to the property. If the
visit to the property provides the tax-sale purchaser with new information (such
as names of potential interest holders), additional searching for recorded
documents may be warranted.
[5] Here, there is no evidence that the Jenners had independent, existing
knowledge of the recording of Crown Castle’s interests. Moreover, Crown
Castle concedes that the recordings were not discoverable—at least at the times
relevant to this case—using the available search options through the Monroe
County Recorder’s Office. The attorney for the title company hired by the
Jenners signed an affidavit indicating that a name search was the company’s
only option, and the only name available to the title company (the only relevant
name in the “chain of title”) was Bloomington Cellular. Of course, advances in
recording, recordkeeping, and search technology have made it possible in many
counties to find recorded interests in a particular tract—even those recorded
“outside” the traditional chain of title—simply by using the legal description,
the address, or the Tax/Parcel ID. Indeed, a search today for the Property’s
Tax/Parcel ID on the Doxpop database for Monroe County quickly leads one
to Crown Castle’s recorded interest. However, because the title company was
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unable to find Crown Castle’s recordings, and because Crown Castle does not
contend that the title company should have been able to do so, we must assume
that, back in 2014, the only way to search for the recordings was a traditional
chain-of-title search by name.
[6] That leaves an in-person visit to the Property, which is where I part ways with
both of my colleagues. On this point, the trial court ruled as follows:
In the present case, a physical view of the Vernal Pike Property
would have disclosed Crown Castle’s interests in the property.
Consequently, knowledge of the cell tower and signage was
imputed to [the Jenners] at the time of the tax sale. The cell
tower and signage were sufficient to disclose Crown Castle had a
substantial property interest in the property. And, with that
knowledge, the Jenners could have searched the Monroe
County Recorder’s public records available for public
inspection through the Internet on DoxPop where they are
maintained for the Monroe County Recorder. Indeed, a simple
name search for Crown Castle would have revealed Crown
Castle’s Lease and License.
Appellants’s App. Vol. II p. 28 (emphasis added). In short, the trial court found
that a visit to the Property would have revealed Crown Castle’s name and that a
follow-up recorder’s office search for Crown Castle’s name would have revealed
its recordings. I defer to the trial court’s factual findings in this regard, and I
vote to affirm its decision on this ground.2
2
In disagreeing with the trial court on this issue, Judge Bailey reads the trial court’s order as concluding that
Crown Castle would have been entitled to notice simply by virtue of its possession of the property, as
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evidenced by the sign, even if its interest had been unrecorded. See slip op. at 16 (“[T]here is no notice
requirement to those who possess the property without a recorded interest. The tax-sale statutes do not
require notice to parties in physical possession unless those parties hold a recorded interest in the land.”) &
17 (“[T]he [tax-sale] statute expressly excludes from the tax-sale purchaser’s duties the necessity of providing
notice to parties in possession with unrecorded interests[.]”). That is not how I read the trial court’s order.
As I see things, the trial court ruled that Crown Castle was entitled to notice precisely because its interest was
recorded—a recording the Jenners would have discovered if they had looked at the sign and then gone to the
recorder’s office and conducted a search for the name on the sign.
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IN THE
COURT OF APPEALS OF INDIANA
David L. Jenner and Vickie Court of Appeals Case No.
Jenner, 53A05-1606-MI-1415
Appellants-Petitioners,
v.
Bloomington Cellular Services,
Inc.,
Appellee-Respondent,
and
Crown Castle South LLC,
Appellee-Intervenor.
Robb, Judge, dissenting.
[7] I agree with Judge Bailey that the sign posted on the property did not put the
Jenners on inquiry notice of Crown Castle’s interest and therefore I agree the
Jenners’ tax deed is not void on this basis.3 See slip op. at ¶ 35. For this reason,
3
Judge Vaidik would affirm on the basis the Jenners should have known to search Crown Castle’s interest
due to the sign. Regardless of whether the statute imposes an inspection requirement, I do not believe the
evidence adduced in this case supports the notion that even if the Jenners had inspected the property, the sign
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it is necessary for me to consider whether the Jenners gave the appropriate
notice of their tax sale purchase, and on that point, I disagree with Judge Bailey
that the Jenners’ failure to uncover Crown Castle’s interest and provide it notice
defeats their tax deed.
[8] I acknowledge Subsection 6-1.1-45-4.5(a)(3) says the tax sale purchaser must
give notice to “any person with a substantial property interest of public record,”
and that on its face, this would require notice to Crown Castle in this case. As
Judge Bailey says, however, a strict interpretation of the statute could require
“searching thousands of records in the county recorder’s office” in order to
comply. Slip op. at ¶ 29. The statutory language itself may be straightforward,
but the manner of complying under this interpretation is anything but. Even
accepting that a tax sale purchase is a “gamble,” see id., imposing a strict
interpretation of the statute would mean that successfully obtaining a tax deed
is all luck and no skill. I find it difficult to accept the Legislature would have
drafted a statute imposing a basically impossible requirement. This is especially
so considering section 6-1.1-25-16(7) says that a person may defeat the title
conveyed by a tax deed only if, among other things, the required notices were
not in substantial compliance with the statutory requirements of section 6-1.1-25-
4.5. For this reason alone, I would interpret the statute to require tax sale
was sufficient to put them on notice that additional entities beyond the chain of title might be entitled to
statutory notice of the tax sale.
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purchasers to provide notice to persons who they know or with the exercise of
reasonable diligence should have known have a substantial property interest.
[9] As to Judge Vaidik’s point that advances in technology have in some
circumstances made a record search easier, I acknowledge this is true and
further acknowledge that if the Jenners purchased the property at a tax sale
today, they would be expected to provide notice to Crown Castle. However,
when the statute was enacted in 1989, searching documents online was not
possible. What’s more, as it stands now, searching documents online may not
be possible in every county, or it may be possible only in a limited way. This
further supports my view that it is unlikely the Legislature enacted this statute
with the intent for a tax sale purchaser to have to search every record in the
recorder’s office to assure he or she has found every recorded property interest.
Returning to Judge Bailey’s analogy of purchasing at a tax sale to gambling, I
do not necessarily disagree that tax sale purchasers are taking a risk. But
according to Judge Bailey’s interpretation of the statute, tax sale purchasers are
taking an even bigger risk than a gambler walking into a casino. In a casino,
the rules are the same at every table for any given game. In this “game,”
however, the rules are different depending on the county in which the property
is located.4 Thus, tax sale purchasers are not taking a gamble that they followed
4
Recorded documents from thirty-nine counties, including Monroe, are available on Doxpop, and a search
by Tax/Parcel ID is possible for thirty-eight of those counties. Indiana counties use court records services
other than Doxpop, so it is possible a search by Tax/Parcel ID may be conducted online in more than the
thirty-eight counties allowing such a search through Doxpop. However, it does not appear possible at all in,
for example, Hamilton County, which uses Doxpop but does not allow searching by Tax/Parcel ID, and
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the tax sale statutes correctly; they are taking a gamble that they can follow the
statutes. As Judge Vaidik points out, that uncertainty would defeat the purpose
of the statute – to collect delinquent taxes.
[10] There will likely be some time in the future when the records in every county
will be on equal footing and even documents recorded outside the chain of title
will reliably and easily be available to tax sale purchasers. Until such time,
however, I do not believe the Legislature intended what Judge Bailey’s opinion
says – that even when a title company does not find a recorded interest, an
average citizen is nonetheless expected to in order to procure a tax deed.
Therefore, I disagree with the ultimate conclusion of the majority—reached
through different means, but nonetheless agreeing on the outcome—that the
trial court should be affirmed and the tax deed set aside.
[11] I would reverse the trial court’s judgment granting Crown Castle’s motion for
relief from judgment.
which does not seem to have any other means of conducting such a search. Other counties have varying
access to and means of conducting online searches.
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