The opinion
ATTORNEYS FOR PETITIONER: ATTORNEYS FOR RESPONDENT:
BENJAMIN A. BLAIR JESSICA R. GASTINEAU
BRIAN J. PAUL OFFICE OF CORPORATION COUNSEL
DAVID A. SUESS Indianapolis, IN
FAEGRE DRINKER BIDDLE &
REATH LLP RAYMOND J. BIEDERMAN
Indianapolis, IN SEAN P. BURKE
HAMISH S. COHEN
JEFFREY N. FURMINGER
MATTINGLY BURKE COHEN &
BIEDERMAN, LLP
Indianapolis, IN
IN THE
INDIANA TAX COURT
CONVENTION HEADQUARTERS )
HOTELS, LLC, ) FILED
) Sep 03 2026, 3:05 pm
Petitioner, ) CLERK
Indiana Supreme Court
) Court of Appeals
and Tax Court
v. ) Case No. 19T-TA-00021
)
MARION COUNTY ASSESSOR, )
)
Respondent. )
ORDER ON PETITIONER’S MOTION FOR LEAVE TO AMEND
PETITION FOR JUDICIAL REVIEW
FOR PUBLICATION
September 3, 2026
MCADAM, J.
After seven years of litigation in this Court, on a case involving a sixteen-year-old
assessment, Convention Headquarters Hotels, LLC (“CHH”) now, for the first time,
seeks leave under Indiana Trial Rule 15 to amend its petition for review. CHH’s
proposed amendments would broaden the pending valuation count, add two new counts
challenging the uniformity and equalization of the March 1, 2010 assessment of CHH’s
property, and revise certain background allegations to conform to the evidence. The
Marion County Assessor does not oppose the amendment of the pending valuation
count if it remains confined to the market value‑in‑use of CHH’s property but opposes
the other revisions and the addition of the two new counts.
A party seeking leave to amend after a delay measured in years must offer some
explanation for that delay. CHH offers none. Instead, CHH attempts to convince the
Court that its uniformity and equalization claims could not have been brought as an
alternative argument and arose only after the Court ruled against CHH in its judgment
on the constitutional claims in this case. The Court is unconvinced and denies leave to
add proposed Counts VII and VIII. However, the Court grants leave to make the
unopposed amendments to Count VI and the amendments to background allegations
which do not prejudice the Assessor or otherwise attempt to incorporate the claims from
proposed Counts VII and VIII.
Facts and Procedural History
On June 28, 2019, CHH filed its Petition for Judicial Review pleading six counts.
Counts I through III alleged violations of the Equal Protection and Due Process
guarantees of the United States Constitution along with a claim under 42 U.S.C. § 1983.
(Pet. Jud. Rev. at 7–11.) Counts IV and V alleged violations of the Property Taxation
Clause and the Equal Privileges and Immunities Clause of the Indiana Constitution.
(Pet. Jud. Rev. at 11–13.) Count VI alleged that the Assessor failed to assess the
subject property’s land at its market value‑in‑use. (Pet. Jud. Rev. at 13.) On September
10, 2019, the Assessor answered the petition and added a counterclaim asserting that,
2
if the evidence showed the subject property to have been under‑assessed, the
assessment should be adjusted accordingly. (Resp’t’s Answer at 2.)
Less than five months later, on November 4, 2019, CHH moved under Trial
Rule 42(B) to bifurcate the proceedings, asking for a stay of all proceedings regarding
the subject property’s valuation so that the parties could first litigate the constitutional
claims. (Pet’r’s Mot. Bifurcate Tr. at 1.) CHH divided the seven pending claims into two
categories, which it labeled the “Constitutional Rights Claims” (Counts I through V) and
the “Valuation Claims” (Count VI and the Assessor’s counterclaim). At the time of its
motion, CHH represented that (1) there were no common issues of fact or law between
the two categories; (2) the case presented five counts relating solely to allegations of
the deprivation of constitutional rights and two counts relating solely to a determination
of the market value‑in‑use of the subject property; (3) the Assessor’s counterclaim
related solely to the level of assessment; and (4) that evidence of the subject property’s
market value‑in‑use was neither necessary nor relevant to deciding the Constitutional
Rights Claims. (Pet’r’s Mem. Supp. Mot. Bifurcate at 3, 9, 10.)
The Assessor opposed bifurcation, recognizing that the assessment at issue was
already nine years old and arguing that bifurcation would further prolong the litigation
and make fact‑finding more difficult. (See Resp. Opp’n Pet’r Mot. Bifurcate at 1–5.) CHH
replied that it sought a partial stay not for purposes of delay but to avoid waste,
unnecessary expense, and in the service of judicial economy, so that the issues could
be addressed more quickly and more efficiently. (Pet’r’s Reply Br. Supp. Mot. Bifurcate
at 5.)
3
On December 3, 2019, the Court granted CHH’s motion, finding that bifurcating
the constitutional claims and the valuation claims promoted judicial economy and
convenience and would not prejudice the Assessor, and ordering that all proceedings
regarding the valuation claims, including the counterclaim, be stayed until the
constitutional claims were resolved. (Order, Dec. 3, 2019, at 1–2.) The parties then
litigated the Constitutional Rights Claims over the next several years, including the
completion of discovery, cross motions for summary judgment (which were ultimately
denied in 2021), three stipulations of facts, and a four-day trial in February 2022. After
the trial, the parties briefed the case and participated in an oral argument. The Court
ultimately took the case under advisement in July 2022.
On May 24, 2024, the Court issued its opinion on the Constitutional Rights
Claims, identifying the primary factual question as whether commercial properties under
construction in Marion County between 2006 and 2019 were selectively assessed.
Convention Headquarters Hotels, LLC v. Marion Cnty. Assessor, 236 N.E.3d 747, 756
(Ind. Tax Ct. 2024). The Court explained that it would apply the facts to the individual
elements of each constitutional claim only if CHH carried that factual burden. Id.
Concluding that CHH had not shown the Assessor treated its under‑construction
property differently than other commercial properties under construction in Marion
County during those years, the Court stated that the absence of disparate treatment
meant CHH’s constitutional rights were not violated. Id. at 752.
CHH petitioned for rehearing on June 21, 2024, asking the Court to take the
relatively uncommon step of certifying the judgment as final and appealable under Trial
Rule 54(B) so that the Constitutional Rights Claims could be resolved before the parties
4
returned to the Valuation Claims. The Court granted the petition and certified the
judgment. CHH then petitioned the Indiana Supreme Court for review, which was
denied on February 6, 2025. Convention Headquarters Hotels, LLC v. Marion Cnty.
Assessor, 253 N.E.3d 513 (Ind. 2025) (table).
After the Court lifted the stay, the parties submitted a joint case management
plan which identified a disagreement about what claims remain after the initial judgment
was finalized. The Court ordered that the parties file a joint notice to provide an update
on the dispute regarding the uniformity claim. The parties filed the joint notice on July 9,
2025, explaining that CHH believed its uniformity claim was not resolved by the first
judgment. The Assessor, in contrast, argued that the November 4, 2019 motion to
bifurcate, and the subsequent order granting that bifurcation, divided all existing claims
in the case into two categories: valuation issues and constitutional issues, meaning that
the claim of uniformity was wholly resolved with the other constitutional issues in the
first judgment. The parties filed a motion to stay the proceedings for clarification on this
question, which the Court granted, directing the parties to brief the dispute. An oral
argument was subsequently held. The Court ordered supplemental briefing from the
parties to clarify the scope of the disputed claims and the scope of relief sought by the
parties.
On June 1, 2026, the Court issued an order clarifying what claims remained after
the first judgment, holding that CHH was judicially estopped from asserting that the
Valuation Claims included any claim beyond a dispute about the market value‑in‑use of
the subject property. (Order, June 1, 2026, at 7.) The Court reasoned that estoppel was
appropriate in this circumstance because CHH made representations to the Court, upon
5
which the Court had relied, that the two claim categories did not overlap legally or
factually and that the only issue left to be resolved was the market value-in-use of the
subject property. (Order, June 1, 2026, at 4–6.) Because CHH’s new claims were
inconsistent with those prior representations, the Court concluded that allowing such an
overlap now would pose an unfair detriment to the Assessor. (Order, June 1, 2026, at
4–6.) The order observed that the decision did not prevent CHH from seeking to amend
its Petition for Judicial Review to add new claims and declined to address the
Assessor’s claim preclusion and issue preclusion arguments for mootness. (Order, June
1, 2026, at 7 & n.2.) The Court directed CHH to give notice within fifteen days whether it
intended to amend and to file any request to amend within thirty days. (Order, June 1,
2026, at 8.)
CHH timely filed its notice and proposed petition amendments on July 1, 2026.
The proposed changes can be understood in three categories. First, the most significant
proposal in the amendment is the addition of two new counts: Count VII alleges that the
Assessor failed to assess the subject property at its uniform and equalized true tax
value in violation of Article X, Section 1 of the Indiana Constitution and Indiana Code
section 6‑1.1‑2‑2. (Pet’r’s Mot. Leave Amend Pet. Judicial Review, Ex. 1 at ¶¶ 104–12.)
Count VIII alleges that the Assessor failed to equalize assessed values as required by
Indiana Code sections 6‑1.1‑13‑5 and ‑6. (Pet’r’s Mot. Leave Amend Pet. Judicial
Review, Ex. 1 at ¶¶ 113–20.) Second, the amendment would broaden Count VI from a
challenge to the assessment of the subject property’s land into a challenge to the
assessment of the property as a whole and would add an allegation that market data,
including assessments of comparable partially complete commercial properties, indicate
6
that the improvements’ market value‑in‑use was lower than $71,716,700 and as low as
$0 based on the prevailing level of assessment the Assessor applied to comparable
properties. (Pet’r’s Mot. Leave Amend Pet. Judicial Review, Ex. 2 at ¶¶ 98–103.) Third,
the Petition amendment would revise several background allegations, which CHH
describes as conforming the petition to the evidence developed in discovery. (Pet’r’s
Mot. Leave Amend Pet. Judicial Review at ¶ 19.)
The Assessor filed a response opposing most of CHH’s requests to amend its
petition. The Assessor does not oppose CHH’s proposed amendment to Count VI,
provided CHH is not permitted to use that amendment to reintroduce issues or claims
resolved by the May 24, 2024 judgment or otherwise arising under a constitutional
provision. (See Resp’t Opp’n Mot. Leave Amend at 2 n.3, 17, 24.) The Assessor does
oppose the addition of proposed Counts VII and VIII, as well as the proposed revisions
to the background allegations. (See Resp. Opp’n Mot. Leave Amend at 2 n.3, 17, 24.)
DISCUSSION
CHH contends that justice requires leave to amend its Petition so that the case
may be resolved on its merits, noting that this is the first attempt to amend pleadings, no
deadlines in the valuation phase have passed, many key facts have already been
developed, and the Court’s June 1, 2026 order “invited” the filing. (Pet’r’s Mot. Leave
Amend Pet. Judicial Review at ¶¶ 11–14, 18.) The Assessor responds in opposition,
arguing that this amendment merely seeks to recast claims from the first judgment in a
new light so that the issues may be improperly relitigated. (See Resp. Opp’n Mot. Leave
Amend at 2–3.) According to the Assessor, permitting CHH to amend its petition would
promote injustice and is barred by various legal doctrines.
7
Resolving this dispute requires the Court to apply its discretion to determine if
CHH’s proposed petition amendments are warranted or should be denied. The Court
finds that the addition of Counts VII and VIII has been unduly delayed and would
prejudice the Assessor but finds no reason to deny the proposed amendments to Count
VI (with one exception) or the proposed amendments conforming the petition to the
evidence. Therefore, the Court partially grants and partially denies CHH’s Motion to
Amend its Petition.1
I. Indiana’s rules governing amendments to pleadings
A motion to amend pleadings is not directly contemplated by the Indiana Tax
Court Rules but is a proper and allowable filing under Indiana Trial Rule 15. Indiana Tax
Court Rule 1 provides that the Rules of Trial Procedure apply in this Court except to the
extent that those rules are clearly inconsistent with the Tax Court Rules. Ind. Tax Ct.
R. 1. Trial Rule 15 allows for amendments to pleadings, Ind. Tr. R. 15(A), and none of
the Tax Court Rules directly address such amendments. Both parties and this Court
therefore agree that Trial Rule 15 may be applied in this case. Because the Court acts
as the finder of fact in an original tax appeal such as this, it must exercise its discretion
in the first instance rather than reviewing the exercise of discretion by another tribunal.
Trial Rule 15(A) provides that leave to amend pleadings “shall be given when
justice so requires.” Ind. Tr. R. 15(A). Indiana courts “freely allow such amendments in
order to bring all matters at issue before the court.” Rusnak v. Brent Wagner Architects,
55 N.E.3d 834, 843 (Ind. Ct. App. 2016). That liberality exists to serve substantial ends:
1
Although the parties raise arguments regarding final judgments under Trial Rule 54(B), claim
preclusion, claim splitting, timeliness in relation back under Trial Rule 15(C), and the lack of
privately enforceable claims, the Court does not reach any of these issues as undue delay and
undue prejudice are dispositive of the relevant issues in the motion to amend.
8
our Supreme Court has explained that the amendment rules exist “to facilitate decisions
on the merits and to avoid pleading traps.” Kimberlin v. DeLong, 637 N.E.2d 121, 128
(Ind. 1994). Leave is therefore ordinarily granted absent prejudice to the opponent. See
In re Est. of Hurwich, 103 N.E.3d 1135, 1139 (Ind. Ct. App. 2018).
In determining whether justice requires an amendment to pleadings, Indiana
courts consider undue delay; bad faith or dilatory motive on the part of the movant;
repeated failure to cure deficiencies by amendments previously allowed; undue
prejudice to the opposing party by virtue of the amendment; and the futility of the
amendment. Rusnak, 55 N.E.3d at 842 (quoting Hilliard v. Jacobs, 927 N.E.2d 393, 398
(Ind. Ct. App. 2010)). The Court will focus on undue prejudice and undue delay in its
analysis, as these factors are dispositive in this case.
II. Proposed Counts VII and VIII
Proposed Counts VII and VIII would each add an entirely new claim to litigation
that began in this Court in 2019 and has already produced multiple unsuccessful
dispositive motions, a trial, a judgment, and an unsuccessful petition for review. While
seven years between pleading and amendment is undoubtedly a long period of time,
the dispositive questions here are whether CHH could have pleaded these counts at the
outset, whether CHH failed to explain the delay with new evidence or changed
circumstances, and whether the Assessor is prejudiced by the negative effects of time
on potentially critical evidence. The Court answers all three in the affirmative.
A. Undue delay
CHH fails to offer a convincing justification for its delay in seeking leave to amend
its pleadings until now, nearly seven years to the day since it first filed its petition in this
9
Court. While it points to the fact that this is its first attempt to amend, CHH is incorrect
that the new theory on which its proposed new claims are based was not available until
after this Court’s decision on the Constitutional Rights Claims. Nothing precluded CHH
from raising them at the outset of litigation before bifurcation. The claims are
constitutional in nature and were only raised after CHH lost on its original constitutional
theories. Without a plausible explanation for such delay, the Court cannot conclude that
leave to amend should be granted now.
For pleading amendments requested years after the initial filing, Indiana courts
have found undue delay dispositive when there has been no change in circumstances
or no new evidence has been discovered to motivate the amendment. See Nyby v.
Waste Mgmt., Inc., 725 N.E.2d 905, 915 (Ind. Ct. App. 2000) (upholding denial of
motion to amend where party “waited twelve years to assert a claim that could have
been raised in their initial complaint”); Gen. Motors Corp. v. Northrop Corp., 685 N.E.2d
127, 142 (Ind. Ct. App. 1997) (upholding denial of motion to amend where new claims
were asserted four years after the original complaint without any assertions that new
evidence might justify the delay); Hilliard, 927 N.E.2d at 399 (“waiting over three years
to assert claims that could have been raised in the original complaint and raising them
only after [the appellate court] ruled on the trial court’s summary judgment order
constitutes undue delay”). By contrast, when a movant has identified something that
changed—often new evidence developed during discovery—denying the amendment
has been held an abuse of discretion, even on the eve of a trial. See, e.g., Kreilein v.
Common Council of City of Jasper, 980 N.E.2d 352, 360 (Ind. Ct. App. 2012)
(overturning amendment denial where defendant’s “recalcitrance . . . was the sole
10
reason for the timing of the proposed amendment”); Pumphrey v. Jones, 172 N.E.3d
1256, 1262 (Ind. Ct. App. 2021) (holding that additional discovery necessary for a
counterclaim “would likely cause some delay” but not undue prejudice). The line these
cases draw is not primarily concerned with the time elapsed; the critical question is
whether the movant can point to a change in facts or circumstances requiring a change
to the pleadings.
Despite arguments to the contrary, the amendments that CHH proposes to its
petition could have been made in its initial pleading as an alternative argument, even if
such an argument created an inconsistency within the document. Indiana Trial Rule
8(E)(2) explicitly allows claims in a pleading that “set forth two or more statements of a
claim . . . alternatively or hypothetically” and ensures that a pleading may “state as
many separate claims or defenses as the pleader has regardless of consistency and
whether based on legal or equitable grounds.” Ind. Tr. R. 8(E)(2) (emphasis added).
CHH ignores this rule and argues that “the equalization theory was not available at the
outset” of this case because it “did not exist.” (Pet’r’s Reply Br. Supp. Mot. Leave
Amend Pet. Judicial Review at 15, 16.) CHH claims that these new counts depend on
the Court’s 2024 ruling that “supplied the legal predicate by accepting that $0
constituted an affirmative assessment.” (Pet’r’s Reply Br. Supp. Mot. Leave Amend Pet.
Judicial Review at 4.) The Court disagrees.
If the Court were to adopt CHH’s reasoning, there could be no alternative
arguments or counterfactuals in pleadings. CHH could only file pleadings consistent
with the facts that could establish its main legal theory at the time of filing—here, that its
property was assessed in 2010 while several other under-construction properties were
11
not. This approach is inconsistent with the Trial Rules and the general operation of
Indiana Courts.
That the $0 assessments could be assessments is not a new revelation. CHH
and the Assessor both discussed the issue multiple times before this attempted
amendment. At least as far back as June 2020, the Assessor made explicit its position
that the $0 valuations for other partially complete properties were “carefully considered”
assessments. (Resp’t’s Br. Supp. Mot. Partial Summ. J. at 5.) And, in post‑trial briefing,
both CHH and the Assessor discussed the fact that CHH was not claiming that the
subject property’s assessed value relative to its market value was higher than the same
ratio for other properties—precisely the claim that proposed Count VII would now plead.
(Resp’t’s Post‑Trial Br. at 57; Pet’r’s Post‑Trial Reply Br. at 24.) The statutory
underpinnings of these claims were also discussed on the same page of CHH’s post-
trial brief, where CHH argued that the Assessor’s conduct violated the Property
Taxation Clause of the Indiana Constitution “as well as its codification in IND. CODE §§
6‑1.1‑2‑2 and 6‑1.1‑13‑5”—statutes on which both proposed Counts VII and VIII rest.
(Pet’r’s Post-Trial Reply Br. at 24.)
Nothing precluded CHH from presenting alternative claims that depended on
competing factual predicates at the outset of this litigation before the Court decided to
bifurcate the litigation. Just as it chose to fashion claims around the theory that
purportedly similar properties were not assessed, it could just as easily have developed
claims around the theory that, even if the properties were assessed, they were
assessed at a proportionately lower level than CHH’s property. Alternative pleadings
like these are the types of arguments lawyers make every day and are at the core of
12
legal practice. This Court’s decision on the Constitutional Rights Claims simply decided
the factual predicate—that the purportedly similar properties were assessed—and
thereby foreclosed one of the two alternative theories.
CHH does not point to any newly discovered facts or changed circumstances that
would necessitate its requested amendment; instead, CHH attempts to reframe the
delay based on the mistaken notion that it could not have previously asserted the
equalization argument. CHH notes that the amendment was filed within the deadline the
Court set in its June 1, 2026 order, that the valuation phase has not been tried and no
valuation‑phase deadline has been missed, and that this is CHH’s first amendment.
(Pet’r’s Mot. Leave Amend Pet. Judicial Review at ¶¶ 11–12.) While each of those
propositions is accurate, none of them offers any reason why an amendment was not
filed in the seven years between the filing of the original petition and the filing of this
motion, despite repeated discussion of the issue throughout. The only difference seems
to be the legal consequences of the facts found in the first judgment: CHH now had to
accept as true that the $0 valuations qualified as assessments, instead of considering it
a potential fact or counterfactual statement. The possibility of such an outcome could
have, and should have, been accounted for at the outset of this case by CHH making
arguments in the alternative. CHH chose not to do this, despite being explicitly made
aware of the Assessor’s position that the $0 valuations were assessments.
All of this was done in the context of bifurcated litigation, where CHH persuaded
the Court to separate valuation and constitutional claims, for the purpose of efficiency,
by representing that no claims shared questions of law or fact. Together, these facts
unavoidably show that CHH knew about the equalization argument and chose not to
13
make it until now, seven years after its initial pleading, requiring CHH to reverse course
on previous representations about the scope of part two of this case. Therefore, the
Court finds that attempting to raise those arguments now constitutes undue delay. 2
B. Undue prejudice
The delay in amending the petition is not without consequence. Aside from
further stretching the resolution of the case, the late addition of the proposed claims is
likely to unduly prejudice the Assessor’s ability to defend the assessments and would
encourage piecemeal litigation.
The prejudice the Assessor would suffer here is not of the kind that additional
time for preparation can cure. Proposed Counts VII and VIII would require litigation of
how the Assessor’s office valued numerous third‑party properties, the construction
status and costs of those properties on historical assessment dates, and the information
available to assessing officials at the time—all as of a March 1, 2010 valuation date now
more than sixteen years past. The Assessor represented at oral argument that
witnesses would be harder to find and less available and that files would require
reexamination. (January 29, 2026 Oral Arg. Tr. at 18.) These are not complaints about
effort or expense. They describe the erosion of the evidence itself, and no case
management schedule can restore what time has taken. That is what distinguishes this
case from other cases that have declined to find prejudice where the burden identified
was one of effort and the record was intact. See, e.g., State Farm Mut. Auto. Ins. Co. v.
2
CHH asserts that the Court “invited” the proposed amendments to its petition, but such
reliance is misplaced. This Court’s June 1, 2026 order noted the scope of its decision and
established a deadline for CHH to request leave to amend its petition under Trial Rule 15(A) to
ensure timely resolution of the issue. The order did not review or address the merits of an
amendment of CHH’s petition and is not relevant here.
14
Shuman, 370 N.E.2d 941, 948 (Ind. Ct. App. 1977) (no prejudice when burden claimed
is “further discovery, preparation and expense”).
The Assessor identified this risk at the outset. Opposing bifurcation in November
2019, the Assessor recognized that the assessment at issue was already nine years old
and argued that bifurcation would prolong the litigation and make fact‑finding more
difficult. (See Resp. Opp’n Pet’r Mot. Bifurcate at 1–5.) CHH answered that bifurcation
would avoid waste and unnecessary expense and would allow the issues to be
addressed more quickly and more efficiently. (See Pet’r’s Reply Br. Supp. Mot. Bifurcate
at 5.) The Court accepted that representation and bifurcated the case. (See Order, Dec.
3, 2019, at 2.) The Assessor then tried the constitutional phase on the understanding,
which CHH had pressed, that the only argument remaining in the second phase of
litigation would be determining the subject property’s market value-in-use. Requiring the
Assessor now to defend that assessment on a comparative equalization theory, which
CHH previously disclaimed, is a burden different in kind from responding to a claim
pleaded at the start.
CHH responds that prejudice will not materialize because much of the evidence
relevant to the proposed counts has already been developed. (Pet’r’s Mot. Leave
Amend Pet. Judicial Review at ¶ 13.) But this response is difficult to reconcile with the
discovery CHH contemplates. At oral argument on the joint motion to stay proceedings
for clarification of the uniformity claim, the Court asked what the proposed claims would
require, and the discussion identified the need to establish a market value‑in‑use for
each comparable property, to compare those values to the assessments, and to apply
statistical analysis to the comparison. (January 29, 2026 Oral Arg. Tr. at 55.) Whatever
15
their precise scope, the new counts in the petition would open an inquiry into the
valuation of properties that may be owned and managed by entities not party to this
case, which were never before at issue, as of a date sixteen years gone. Unlike the
parties to this case, the persons responsible for those other properties were under no
obligation to preserve evidence during the progress of this litigation.3
Permitting CHH to add its newly proposed claims at this juncture would subject
the Assessor to serial litigation. Indiana courts are rightfully reluctant to permit parties to
proceed with new theories in circumstances like those present here. Allowing parties to
“assert[ ] new theories of recovery only after the original claims have proven unsound
would place an undue burden on [opposing parties] to defend such piecemeal litigation
and would result in potentially endless ‘bites at the apple.’” Hilliard, 927 N.E.2d at 400.
Such is the case here. Despite earlier awareness of the claims it now seeks to assert
and an ability to raise them at the outset of litigation, CHH has chosen to assert these
constitutional claims only after its original constitutional claims were unsuccessful.
Absent a plausible justification for the delay, such undue burden amounts to
prejudice. Id. This prejudice is particularly evident when considering the procedural
3
One further observation is necessary: when it previously found CHH judicially estopped, the
Court explained that allowing CHH to change course after seven years would be manifestly
unjust and impose an unfair detriment on the Assessor, and that duplicative and inefficient
discovery was a near certainty. (Order, June 1, 2026, at 6.) Those findings were made in
applying the third judicial estoppel factor, which asks whether a litigant’s change of position
would unfairly advantage it or unfairly burden an opponent who relied on the position
abandoned. Trial Rule 15(A) asks a different question: whether the opposing party would be
unfairly burdened in defending a newly pleaded claim. The Court’s observations about the
difficulty of developing evidence concerning third‑party properties bear on both inquiries.
Ultimately, however, prejudice under Rule 15(A) is weighed against the reasons offered by the
moving party. Had CHH identified any circumstances that changed and required amendment to
its petition, the Court would have set that explanation against the burden described above, and
the balance might well have come out differently. But CHH has identified none. It is the absence
of any plausible justification, and not the burden alone, that makes this prejudice undue.
16
history of this case, where CHH convinced this Court to bifurcate the proceedings early
in the litigation, over the objection of the Assessor, based on CHH’s representations
about the scope of the claims left to be decided. Those representations suggested a
much narrower set of issues than those presented by CHH’s newly proposed claims.
Had the Court been apprised that these new claims would be lodged if it ruled against
CHH on its Constitutional Rights Claims, it may well have declined to bifurcate or
chosen an entirely different path for the proceedings. The serial approach to asserting
these claims has impaired the selection of the most efficient means of resolving the
dispute.
III. The amendment of Count VI
The proposed amendments to Count VI appear to do two different things:
(1) make clear CHH’s intent to discuss the value of both the subject property’s land and
improvements for valuation purposes, (Pet’r’s Mot. Leave Amend Pet. Judicial Review,
Ex. 2 at 14–15 ¶¶ 96–101,) and (2) incorporate an equalization claim into Count VI
(Pet’r’s Mot. Leave Amend Pet. Judicial Review, Ex. 2 at 15 ¶ 102.) The Court will
discuss each of these amendments in turn.
First CHH seeks to expand its claim regarding the value of the subject property’s
land component to a claim regarding the value of the property as a whole, including
both the land and the improvements. As broadened, Count VI is coextensive with the
Assessor’s counterclaim, which has always addressed the assessment of the property
in this way. The amendment therefore aligns the parties’ competing valuation claims
rather than enlarging the scope of the litigation, and the Assessor does not oppose it.
(Resp. Opp’n Mot. Leave Amend at 24.)
17
The Assessor’s lack of opposition, however, is conditional, and that condition is
well taken. Proposed paragraph 102 would allege that the subject property’s
improvements had a market value‑in‑use as low as $0 “based on the prevailing level of
assessment applied by the Assessor to comparable properties and the Assessor’s
assignment of $0 assessments to comparable properties.” (Pet’r’s Mot. Leave Amend
Pet. Judicial Review, Ex. 2 at ¶ 102.) That allegation does not describe the market
value‑in‑use of the subject property. It describes the relationship between the subject
property’s assessment and the assessments of other properties—which appears to
raise an equalization theory. Attempting to add an equalization argument in Count VI
suffers from the same defects of undue delay and prejudice that exist for proposed
Counts VII and VIII. This addition will not be allowed.
Leave to amend Count VI is therefore granted in part, subject to the express
limitation that Count VI remains confined to the market value‑in‑use of the subject
property and does not encompass any claim that the subject property’s assessment
must be adjusted to equalize it with the assessments of other properties. The Court
therefore rejects the amendment to the language in paragraph 102 of CHH’s proposed
amended petition and grants all other proposed amendments to Count VI.
IV. The amendments of the title, introduction, and background facts
CHH also seeks to revise several background allegations, which it describes as
conforming its pleading to the evidence under Trial Rule 15(B) because the discovery
process refined the number of comparable properties. (Pet’r’s Mot. Leave Amend Pet.
Judicial Review at ¶ 19.) CHH states, in a footnote to the proposed amended petition,
that Counts I through V and the related background facts “are retained solely to
18
preserve those claims for the record and any further appellate review.” (Pet’r’s Mot.
Leave Amend Pet. Judicial Review, Ex. 1 at 1 n.1.) The Assessor challenges this
characterization, arguing that the background fact changes are either relabeling
previously decided claims or are improper under Trial Rules 59 and 60. (Resp. Opp’n
Mot. Leave Amend at 2, 17.)
Allegations retained solely for the record require no revision. However, to the
extent the revised allegations are offered as background to the claims that remain live,
the Court sees no prejudice to the Assessor and finds no reason to restrict CHH’s
request to amend these allegations. Leave is therefore granted in part, with the express
qualification that such background to the claims remaining in this litigation has no effect
whatever on Counts I through V, on the May 24, 2024 judgment, or on any finding
underlying that judgment, and does not attempt to incorporate any proposed
amendments denied by the Court above.
CONCLUSION
The Court GRANTS Petitioner’s Motion for Leave to Amend Petition for Judicial
Review to the extent proposed by the Motion’s Exhibit 2 in numbered paragraphs 27,
28, 29, 34, 35, 36, 42, 43, 44, 99, 101 and 103, as well as the additions identified in
subparts b and e in the Prayer for Relief, and for titles, subtitles, and paragraph
numbering, as needed. Paragraph 102 in Exhibit 2 may be amended in part, to state the
following:
Market data indicate that the market value-in-use of the Subject Property’s
improvements was lower than $71,716,700 as of March 1, 2010.
19
Subpart d in the Prayer for Relief in Exhibit 2 may be amended in part, to state the
following:
Reduce the improvements component of the Assessment to reflect its
market value-in-use as shall be proven at trial.
Leave for all other proposed amendments is DENIED.
CHH is ORDERED to file an amended petition conforming to this order within
fifteen days. The parties are ORDERED to file a joint proposed case management plan
within thirty days, addressing the sequencing of any remaining discovery and dispositive
motions on the claims that remain.
SO ORDERED this 3rd day of September 2026.
Justin L. McAdam
Judge, Indiana Tax Court
Distribution:
Benjamin A. Blair, Brian J. Paul, David A. Suess, Jessica R. Gastineau, Raymond J.
Biederman, Sean P. Burke, Hamish S. Cohen, Jeffrey N. Furminger, Indiana Board
of Tax Review
20