# Convention Headquarters Hotels LLC v. Marion County Assessor

> Indiana Tax Court · September 3, 2026

URL: https://www.frixlaw.com/law-library/cases/11433737

## Case

- **Court:** Indiana Tax Court
- **Decided:** September 3, 2026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11433737. Public record. Not legal advice.