ILNews

COA rules paying penalty doesn't nullify appeal

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. @BryanJBrown, You are totally correct. I have no words, you nailed it.....

  2. You have not overstated the reality of the present situation. The government inquisitor in my case, who demanded that I, on the record, to choose between obedience to God's law or man's law, remains on the BLE, even an officer of the BLE, and was recently renewed in her contract for another four years. She has a long history in advancing LGBQT rights. http://www.realjock.com/article/1071 THINK WITH ME: What if a currently serving BLE officer or analogous court official (ie discplinary officer) asked an atheist to affirm the Existence, or demanded a transsexual to undergo a mental evaluation to probe his/her alleged mindcrime? That would end a career. The double standard is glaring, see the troubling question used to ban me for life from the Ind bar right here: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners (see page 8 of 21) Again, what if I had been a homosexual rights activist before law school rather than a prolife activist? A gay rights activist after law school admitted to the SCOTUS and Kansas since 1996, without discipline? A homosexual rights activist who had argued before half the federal appellate courts in the country? I am pretty certain that had I been that LGBQT activist, and not a pro-life activist, my passing of the Indiana bar exam would have rendered me an Indiana attorney .... rather than forever banished. So yes, there is a glaring double standard. And some are even beyond the reach of constitutional and statutory protections. I was.

  3. Historically speaking pagans devalue children and worship animals. How close are we? Consider the ruling above plus today's tidbit from the politically correct high Court: http://indianacourts.us/times/2016/12/are-you-asking-the-right-questions-intimate-partner-violence-and-pet-abuse/

  4. The father is a convicted of spousal abuse. 2 restaining orders been put on him, never made any difference the whole time she was there. The time he choked the mother she dropped the baby the police were called. That was the only time he was taken away. The mother was suppose to have been notified when he was released no call was ever made. He made his way back, kicked the door open and terrified the mother. She ran down the hallway and locked herself and the baby in the bathroom called 911. The police came and said there was nothing they could do (the policeman was a old friend from highschool, good ole boy thing).They told her he could burn the place down as long as she wasn't in it.The mother got another resataining order, the judge told her if you were my daughter I would tell you to leave. So she did. He told her "If you ever leave me I will make your life hell, you don't know who your f!@#$%^ with". The fathers other 2 grown children from his 1st exwife havent spoke 1 word to him in almost 15yrs not 1 word.This is what will be a forsure nightmare for this little girl who is in the hands of pillar of the community. Totally corrupt system. Where I come from I would be in jail not only for that but non payment of child support. Unbelievably pitiful...

  5. dsm 5 indicates that a lot of kids with gender dysphoria grow out of it. so is it really a good idea to encourage gender reassignment? Perhaps that should wait for the age of majority. I don't question the compassionate motives of many of the trans-advocates, but I do question their wisdom. Likewise, they should not question the compassion of those whose potty policies differ. too often, any opposition to the official GLBT agenda is instantly denounced as "homophobia" etc.

ADVERTISEMENT