providing that an objection to an untimely-filed petition is waived when first raised in a response brief on the merits
How later courts described this case
- providing that an objection to an untimely-filed petition is waived when first raised in a response brief on the merits
Written by the judges who cited it.
The opinion
ATTORNEY FOR PETITIONER: ATTORNEYS FOR RESPONDENT:
SHAWN F. SULLIVAN GREGORY F. ZOELLER
ATTORNEY AT LAW ATTORNEY GENERAL OF INDIANA
South Bend, IN ANDREW T. GREIN
DEPUTY ATTORNEY GENERAL
Indianapolis, IN
FILED
IN THE Dec 30 2016, 2:09 pm
CLERK
INDIANA TAX COURT Indiana Supreme Court
Court of Appeals
and Tax Court
LAKE COUNTY TRUST CO., TRUST NO. 6, )
(FLOWERS FOR HEAVEN, INC.) )
)
Petitioner, )
)
v. ) Cause No. 02T10-1604-TA-00010
)
ST. JOSEPH COUNTY ASSESSOR, )
)
Respondent. )
ORDER ON RESPONDENT’S MOTION TO DISMISS
FOR PUBLICATION
December 30, 2016
WENTWORTH, J.
This matter comes before the Court on the St. Joseph County Assessor’s Motion
to Dismiss (Motion) Lake County Trust Co., Trust No. 6 (Flowers for Heaven, Inc.) (the
“Trust”)’s original tax appeal for failure to timely file the certified administrative record.
Upon review, the Court DENIES the Assessor’s Motion.
FACTS AND PROCEDURAL HISTORY
On April 25, 2016, the Trust initiated an original tax appeal challenging a final
determination of the Indiana Board of Tax Review. In its Petition, the Trust requested
that the Indiana Board prepare the certified administrative record and stated that it
would file it with the Court within thirty days of being notified that it was complete as
required by Tax Court Rule 3(E). (See Pet’r V. Pet. Original Tax Appeal of Final
Determination Ind. Bd. Tax Review at ¶ 8.)
On May 6, 2016, the Indiana Board notified the Trust by letter that the certified
administrative record was complete. (See Resp’t. Mot. Dismiss (“Resp’t Mot.”), Ex. A at
¶ 8.) On June 23, 2016, the Court held a case management conference, at which time
it established the parties’ briefing schedule. On September 1, 2016, the Trust filed its
brief on the merits, but it had not yet filed the certified administrative record. (See Pet’r
V. Resp. Resp’t Mot. Dismiss & Request for Leave to File Certified Record (“Pet’r
Resp.”) at ¶¶ 1-3, 9.) The Assessor filed its Motion on September 7, 2016. The Trust
responded to the Motion on September 13, 2016, and filed the certified administrative
record that same day. The Court held oral argument on the Motion on October 20,
2016.1 Additional facts will be provided as necessary.
LAW AND ANALYSIS
There is no dispute that the Trust failed to timely file the certified administrative
record. (See Pet’r Resp. at 1-2.) The Assessor therefore claims that the Trust’s appeal
should be dismissed. (Resp’t Mot. at ¶ 6.) The dispositive issue before the Court,
however, is whether the Assessor’s Motion raising its objection was itself timely.
The Assessor contends that its objection was timely under Indiana Trial Rule
12(B) because it filed its Motion within 20 days after the Trust filed its brief. (See Oral
Arg. Tr. at 13-15.) Indiana Trial Rule 12(B) provides that defenses shall be made by
1
The Court wishes to thank the staff and students at South Side High School in Fort Wayne,
Indiana, for hosting the oral argument in this case.
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motion either “before pleading if a further pleading is permitted or within twenty [20]
days after service of the prior pleading if none is required.” Ind. Trial Rule 12(B). The
word “pleadings” is expressly defined as complaints, answers, and similar filings. Ind.
Trial Rule 7(A). Here, the Assessor’s objection was made six days after the Trust filed
its brief on the merits, but because a brief is not a pleading, Indiana Trial Rule 12(B)
does not shelter the Assessor’s objection from waiver. See T.R. 12(B).
The Indiana Supreme Court has stated that a party may move to dismiss a case
pursuant to Trial Rule 12(B)(1) when a procedural prerequisite is not timely performed,
even though the Court’s subject matter jurisdiction is not implicated. See Packard v.
Shoopman, 852 N.E.2d 927, 931-32 (Ind. 2006). In addition, the Supreme Court has
provided that any objection of this type can be waived if not raised at the “appropriate
time.” Id. at 932. Although the Supreme Court did not provide a bright line rule for
determining the “appropriate time,” it did explain that an objection must be made at the
“earliest opportunity.” Id.
Whether a filing is timely does not implicate the merits of a controversy. See,
e.g., id. at 931-32. Thus, it follows that the “earliest opportunity” to object must precede
the furtherance of the merits. See id. at 928, 930-32 (providing that an objection to an
untimely-filed petition is waived when first raised in a response brief on the merits);
Jones v. Jefferson Cnty. Assessor, 6 N.E.3d 1048, 1049-50 (Ind. Tax Ct. 2014) (finding
that an objection to the failure to request the certified administrative record is waived
when first raised in a response brief on the merits); Bedford Apartments v. Jean, 843
N.E.2d 78, 79-81 (Ind. Tax Ct. 2006) (denying a motion to dismiss filed after briefing
and oral argument that objected to an untimely filed certified administrative record).
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Accordingly, the Court finds that an objection to the untimely filing of the certified
administrative record in an appeal from a final determination of the Indiana Board must
itself be filed before the merits of a case have been furthered. Here, the Assessor filed
its Motion after the Trust filed its brief; at that point, however, the merits of the case had
already been furthered. Consequently, the Assessor waived its objection to the Trust’s
untimely filing of the certified administrative record.
CONCLUSION
For the foregoing reasons, the Court DENIES the Assessor’s Motion. The Court
will order a revised briefing schedule by separate cover.
SO ORDERED this 30th day of December, 2016.
Martha Blood Wentworth
Judge, Indiana Tax Court
Distribution: Shawn F. Sullivan, Andrew T. Grein
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