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COA rules paying penalty doesn't nullify appeal

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The Indiana Court of Appeals has ruled on an issue that has not directly been addressed by statute or caselaw, holding that paying a civil penalty to stop a tax sale of property doesn’t cancel out an appeal questioning that assessment’s validity.

A ruling came Tuesday in Gordon B. Dempsey v. Department of Metropolitan Development of City of Indianapolis, No. 49A02-1102-MI-165, reversing a judgment from Marion Superior Judge Robyn Moberly and Judge Pro Tempore Kim Mattingly.

The case involves a property on Berwick Avenue in Indianapolis. The owner died in 2004, and another person bought the property at a tax sale that same year but did not record a tax deed. The property remained vacant and, in May 2008, the Health and Hospital Corporation determined the building maintenance hadn’t been kept up in compliance with the city’s vacant building standards. Dempsey bought the property in June 2008 and made a down payment, and an inspector that summer visited the site and saw Dempsey doing work on the house.

An administrative hearing on the violations to the Vacant Building Standards and Unsafe Building Laws was held, and despite the inspector being present to testify about the work he saw Dempsey doing, the administrative law judge imposed a civil penalty of $2,500 against Dempsey, who was not present. Dempsey appeared at later hearings to demonstrate work was being done, and he was fined another $2,500. The ALJ waived the original fine at a subsequent hearing in June 2009 and reduced the second penalty to $1,500. That’s the assessment that remained in place and was certified as “final.”

Dempsey appealed the ALJ’s civil penalty to the Marion Superior Court, but the city department didn’t receive notice of that appeal and it certified the allegedly delinquent penalty to the county auditor and tacked the $1,500 penalty on to Dempsey’s fall 2009 tax bill as a special assessment. In October 2009, Dempsey paid the $1,500 civil penalty and additional fees despite the ongoing trial court appeal of the fine itself, and as a result the trial court in December 2010 granted a motion from the city to dismiss the appeal because it was moot.

On appeal, both parties disagree about whether Dempsey’s payment of that civil penalty to prevent a delinquent tax sale cancelled out the appeal he filed earlier that year disputing the fine itself.

The Court of Appeals found no statute or reported case directly on point, but relied on provisions of Indiana Code 6-1.1-15-10(a) applying to tax appeals, which says that taxpayers must pay their taxes on tangible property when the tax installments come due even if a petition for review or judicial review proceeding is pending.

“That said, it is apparent that the concept of mootness runs afoul of the circumstances here that involve the payment of the penalty that was imposed under the housing code that enabled Dempsey to avoid the sale of the property at a tax sale,” Judge John Baker wrote. “And there is no case, statute, or rule suggesting that Dempsey’s payment of the tax bill, which includes the penalty that was assessed under the building code, renders the appeal moot. Therefore, we reject the DMD’s assertion that Dempsey’s payment of the penalty ‘on his own volition’ removed the controversy by paying the civil penalty.”

The case is remanded to Marion Superior, with instructions to reinstate Dempsey’s appeal, decide the case on its merits, and determine whether the penalty was warranted. But the appellate court declined to allow for any attorney fees and costs to Dempsey because he doesn’t show the city department made arguments that were frivolous, unreasonable, groundless, or in bad faith.

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  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

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