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. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  3. Low energy. Next!

  4. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

ADVERTISEMENT