Petition for Writ of Certiorari — Anita Bryant, Petitioner v. Delaware County Treasurer, et al.

MEMORANDUM DECISION

FILED

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision is not binding

precedent for any court and may be cited

only for persuasive value or to establish res

judicata, collateral estoppel, or law of the

case.

Mar 09 2023,9:17 am

CLERK

Indiana Supreme Court

k Court of Appeals a

and Tax Court

Appellant pro se

Attorneys for Appellee

Anita Bryant

Tampa, Florida

John H. Brooke

Danyel N. Struble

Amanda N. Brown

Brooke & Struble, PC

Muncie, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Anita Bryant,

March 9, 2023

Appellant,

Court of Appeals Case No.

22A-TS-2380

v.

Appeal from the Delaware Circuit

Court

Delaware County Auditor and

Delaware County Treasurer,

The Honorable Thomas A.

Cannon, Jr., Judge

Appellees.

Trial Court Cause No.

18C05-2208-TS-232

Memorandum Decision by Judge Riley

Chief Judge Altice and Judge Pyle concur.

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 22A-TS-2380 | March 9, 2023

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STATEMENT OF THE CASE

[l]

Appellant, Anita Bryant (Anita), appeals the trial court’s Order, denying her

objection to the tax sale of certain real estate in favor of Appellees-Plaintiffs, the

Delaware County Auditor and the Delaware County Treasurer (collectively,

Plaintiffs).

[2]

We dismiss.

ISSUE

[3]

Anita presents this court with at least three issues, but we do not reach the

merits of her claims because we find an issue raised by Plaintiffs to be

dispositive: Whether Anita has standing to bring this appeal.

FACTS AND PROCEDURAL HISTORY

[4]

On August 25, 2022, Plaintiffs filed their Petition for Issuance of Tax Deed in

Cause Number 18C05-2208-TS-232 (Cause -232) in the Delaware Circuit

Court, seeking an entry of judgment and order for the sale of certain real

property located at 3915 South Ebright Street, Muncie, Indiana, to satisfy

delinquent property taxes or special assessments and costs. On August 29,

2022, the trial court entered its Judgment and Order of Sale. On August 30,

2022, Anita filed her unverified Objection to Tax Sale seeking an injunction to

stop the sale of the real estate. In her objection, Anita styled herself as

“Beneficiary/Heir” of the supervised estate of Laura J. Bryant (Estate), Cause

Number 18C01-2106-ES-15 (Cause -15). She stated that Leonard Bryant

(Leonard) was the Personal Representative of the Estate, and claimed the real

Court of Appeals of Indiana | Memorandum Decision 22A-TS-2380 | March 9, 2023

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estate at issue was part of the Estate. (Appellant’s App. Vol. II, p. 9). Anita

further claimed that Leonard “and/or Council” had made misrepresentations,

presumably in Cause -15 matters, regarding the real property that merited

injunctive relief stopping the tax sale. (Appellant’s App. Vol. II, p. 9). On

August 31, 2022, the trial court set a hearing on Anita’s objections for

September 28, 2022. On September 9, 2022, Anita filed her appearance in

*

Cause -232. On September 28, 2022, the trial court held a hearing on Anita’s

objections to the tax sale at which Anita appeared. On September 30, 2022, the

trial court issued its Order, denying Anita’s objection to the tax sale, finding, in

relevant part, as follows:

The [cjourt finds the Respondent/Objector lacks standing to

object to the sale, and that no legal remedy is available to remove

the property located at 3915 S. Ebright St., Muncie, Indiana from

the tax sale other than payment of delinquent taxes and penalties.

(Appellant’s App. Vol. II, p. 8).

[5]

On October 7, 2022, Anita filed a motion seeking to stay the tax sale pending

appeal, which the trial court denied on October 10, 2022. On October 11, 2022,

Anita filed a motion with this court seeking an emergency stay of the tax sale

pending her appeal. On October 12, 2022, this court denied Anita’s motion.

[6]

Anita now appeals. Additional facts will be provided as necessary.

Court of Appeals of Indiana | Memorandum Decision 22A-TS-2380 | March 9, 2023

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DISCUSSION AND DECISION

[7]

Anita brings several claims on appeal, but we do not reach the substance of her

arguments because we conclude that she lacks standing to bring the instant

appeal. “A would-be party must first have standing to seek relief from the

courts.” Simon v. Simon, 957 N.E.2d 980, 987 (Ind. Ct. App. 2011). Similar to

the real-party-in-interest requirement, the standing requirement ensures “that

the party before the court has a substantive right to enforce the claim that is

being made in the litigation.” Id. In Simon, a surviving spouse and would-be

party who was not the personal representative of an estate attempted to appeal

an estate-related matter, claiming that she, as a beneficiary of the estate who

was aggrieved by the trial court’s decision, had standing to do so. Id. at 987-88.

The surviving spouse relied on Indiana Code section 29-1-1-22 of the Probate

Code which provides that “[a]ny person considering himself aggrieved by any

decision of a court having probate jurisdiction in proceedings under this article

may prosecute an appeal to the court having jurisdiction of such appeal.” Id. at

988. This court rejected the surviving spouse’s claim of standing to appeal,

concluding that

to prosecute an appeal, the person considering herself aggrieved

must have first been a party before the trial court. Appellate Rule

17(A) provides that “[a] party of record in the trial court. . . shall

be a party on appeal.” The converse is also true: a person who is

not a party of record in the trial court cannot become a party for

the first time on appeal. See Treacy v. State, 953 N.E.2d 634 (Ind.

Ct. App. 2011), pet. for trans. filed. That is, “Rule 17 . . . limits the

class of parties on appeal to parties of record in the trial court.”

Id.

Court of Appeals of Indiana | Memorandum Decision 22A-TS-2380 | March 9, 2023

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Page 4 of 6

Id. at 989-90. The Simon court concluded that the surviving spouse had no

standing to appeal because she had never motioned to intervene in her personal

capacity in the trial court proceedings. Id. at 989. The court also observed that

there are no appellate rules providing for intervention in an appeal and that a

party who feels they are an aggrieved person under section 29-1-1-22 must

“make that argument to the trial court in the first instance in a motion to

intervene.” Id. We dismissed the appeal for lack of jurisdiction. Id. at 990.

[8]

Although Plaintiffs devote the lion’s share of their appellate argument to

defending the trial court’s decision, they also contest Anita’s standing to bring

this appeal. Here, Anita appears pro se, as she did in the underlying

proceedings. However, it is well-established that on appeal pro se litigants are

held to the same standards as attorneys. Spainhower v. Smart & Kessler, LLC, 176

N.E.3d 258, 263 (Ind. Ct. App. 2021), trans. denied.

[9]

Plaintiffs did not name Anita as a party in Cause -232, so she was not a party of

record. Anita’s status as a putative aggrieved beneficiary of the Estate did not,

by itself, confer standing upon her to bring this appeal. See Simon, 957 N.E.2d

at 989-90. Anita did not make herself a party to the underlying proceedings

through a successful motion to intervene. The fact that she filed an appearance

in Cause -232 did not provide her with standing. See Kelley v. Kelley, 158 N.E.3d

396, 399-400 n.l (Ind. Ct. App. 2020) (dismissing an appeal by a person who

was neither a party of record nor an intervenor in the trial court proceedings,

even though that person had filed an appearance and had been referred to by

the trial court as “intervenor”). The fact that Plaintiffs may have treated Anita

Court of Appeals of Indiana | Memorandum Decision 22A-TS-2380 | March 9, 2023

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Page 5 of 6

as a party did not provide her with standing. See id. at 399 n.2 (observing that a

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lack of jurisdiction cannot be waived by the parties and is an issue that can be

raised at any time). There is no provision in the Tax Sale Statute conferring

standing on persons such as Anita. See I.C. § 6-1.1-24 etseq. Because Anita was

not a party to the underlying proceedings, she does not have standing, and we

dismiss her appeal. See Simon, 957 N.E.2d at 990.

CONCLUSION

[10]

Based on the foregoing, we conclude that Anita has no standing to bring this

appeal.

[li]

Dismissed.

[12]

Altice, C. J. and Pyle, J. concur

Court of Appeals of Indiana | Memorandum Decision 22A-TS-2380 | March 9, 2023

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Page 6 of 6

Jr

V

STATE OF INDIANA

IN THE DELAWARE CIRCUIT COURT #5

)

)SS

COUNTY OF DELAWARE )

2022 TERM

IN RE: THE TAX SALE OF 2022

CAUSE NO. 18C05-2208-TS-000232

DELAWARE COUNTY

AUDITOR/TREASURER

Plaintiff

ANITA BRYANT

Respondent/Objector

ORDER DENYING OBJECTION TO TAX SALE

PERTAINING TO REAL ESTATE LOCATED

AT 3915 S EBRIGHT ST, MUNCIE, INDIANA

Respondent/Objector, Anita Bryant, appears via Zoom for hearing Objection to Tax Sale

filed on August 30,2022. The Delaware County Auditor’s Office appears by Counsel, Danyel

Struble, in person and John Brooke, via Zoom. Evidence heard and concluded.

The Court finds the Repsondent/Objector lacks standing to object to the sale, and that no legal

remedy is available to remove the property located at 3915 S. Ebright St., Muncie, Indiana from

the tax sale other than payment of delinquent taxes and penalites.

ORDERED AND DATED

SEP 3 0 M22

JUDGE, THOMAS A. CANNON JR.,

DELAWARE CIRCUIT COURT #5

DISTRIBUTION:

Anita Bryant, 6902 W. Hillsborough Ave., Tampa, FL 33634

Danyel Struble, Attorney for Delaware County

Delaware County Treasurer

Delaware County Auditor

innanrliv R

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.

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3Jn tl)p

3fnbtana Supreme Court

Anita Bryant,

Appellant(s),

Court of Appeals Case No.

22A-TS-02380

Trial Court Case No.

18C05-2208-TS-232

v.

Delaware County Treasurer; Delaware

County Auditor,

Appellee(s).

FILED

Jul 13 2023, 3:25 pm

CLERK

Order

Indiana Supreme Court

. Court of Appeals ,

W and Tax Court J

This matter has come before the Indiana Supreme Court on a petition to transfer

jurisdiction, filed pursuant to Indiana Appellate Rules 56(B) and 57, following the issuance of a

decision by the Court of Appeals. The Court has reviewed the decision of the Court of Appeals,

and the submitted record on appeal, all briefs filed in the Court of Appeals, and all materials

filed in connection with the request to transfer jurisdiction have been made available to the

Court for review. Each participating member has had the opportunity to voice that Justice’s

views on the case in conference with the other Justices, and each participating member of the

Court has voted on the petition.

Being duly advised, the Court DENIES the petition to transfer.

Done at Indianapolis, Indiana, on 7/13/2023

I

Loretta H. Rush

Chief Justice of Indiana

All Justices concur.

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