Indiana Court Decisions: Aug. 24-Sept. 6, 2023

7th Circuit Court of Appeals

Sept. 5

A.B. and D.B., individually and as parents of C.B., a disabled minor v. Brownsburg Community School Corporation

22-1277

Parents were prevailing party in administrative proceeding, could be awarded attorney fees, 7th Circuit rules in reversal

Because the parents of a child with disabilities were the prevailing party in an administrative proceeding, attorney fees could be awarded to them, the 7th Circuit Court of Appeals ruled in reversing a trial court’s decision.

The parents filed a lawsuit seeking recovery of their attorney fees from the Brownsburg Community School Corporation after the conclusion of a protracted administrative proceeding regarding the child’s eligibility for special education services.

The child, C.B., suffers from generalized anxiety disorder, depression and attention deficit hyperactivity disorder.

During the 2017-2018 school year, Brownsburg determined C.B.’s anxiety made him eligible to receive accommodations under Section 504 of the Rehabilitation Act.

While an accommodation plan was in place, C.B. brought a shotgun shell to school along with a device “believed to be capable of discharging the cell,” court documents show.

The school recommended his expulsion and scheduled a meeting to determine whether his actions were caused by or substantially related to his anxiety.

But before that meeting, parents A.B. and D.B. filed a petition for due process hearing with the Indiana Department of Education, arguing the school should have arranged an education evaluation for C.B. because it would have shown he was eligible for special services pursuant to the Individuals with Disabilities Education Act.

Brownsburg determined the shotgun shell incident was ultimately not related to C.B.’s anxiety, and he was expelled for the remainder of the school year.

The parents met with the school to resolve the issues presented in their petition, and Brownsburg agreed to have a doctor evaluate C.B. and then convene a case conference committee meeting to determine whether he was eligible for special services under the IDEA.

At issue was the implementation of an individualized education program.

The case conference committee concluded C.B. did not meet the eligibility requirements for special education services. However, it also determined the accommodation plan needed to be amended to include and accommodate C.B.’s diagnosis of ADHD.

The Indiana Department of Education assigned an independent hearing officer to preside over the pending petition for due process hearing and a subsequently filed request for due process hearing.

The parties engaged in settlement negotiations in the months leading up to the due process hearing, and Brownsburg offered in April 2020 to pay for a new independent education evaluation of C.B. and hold another case conference committee meeting to revisit his eligibility.

C.B.’s parents provided a list of compromises they would agree to as long as Brownsburg agreed to pay for all attorney fees.

The school sent the parents a letter offering to accept each compromise — except for the payment of attorney fees. The school said it was willing to pay a portion of the fees, but not the full amount.

The parents rejected the offer and reinstated their initial demands.

In July 2020, Brownsburg sent the parents a draft settlement agreement, offering to acquiesce to all demands except for the issue of attorney fees. The school also filed a motion asking the independent hearing officer to cancel the upcoming due process hearing and dismiss the case.

The parents filed a response, indicating they did not object to the officer issuing an order acknowledging Brownsburg’s concession regarding C.B.’s eligibility under the IDEA. But they believed the officer should make factual findings regarding attorney fees.

The officer denied all pending motions and vacated the hearing.

About two weeks later, the officer issued a Finding of Eligibility and Order to Convene Case Conference Committee.

After holding another case conference committee and corresponding about the development of C.B.’s IEP, the parents filed a Motion for Prehearing Conference to Resolve Pending Issues.

The officer denied the motion, stating that she was not “inclined to address any further motions from the parties other than one for dismissal,” and that the motion didn’t identify exactly what issues necessitated a prehearing.

The officer dismissed the petitions in August 2020.

In September 2020, the parents sued Brownsburg for attorney fees pursuant to the IDEA’s fee-shifting provision that allows fees to be awarded to prevailing parties in administrative proceedings.

Both parties filed cross-motions for summary judgment.

The Indiana Southern District Court, Indianapolis Division, granted summary judgment for Brownsburg, explaining that the only question relevant when determining prevailing-party status is if C.B.’s parents secured a “material alteration of the legal relationship between the parties” through the officer’s order.

The district court determined the answer was no because the officer’s eligibility finding and order didn’t require Brownsburg to do anything it hadn’t already agreed to.

On appeal, the 7th Circuit reversed, finding Brownsburg and the district court put too much weight on the school’s stipulation where it agreed to provide remedies for C.B.

“There is nothing in the record to suggest that the Stipulation filed by Brownsburg was binding,” the opinion says.

The 7th Circuit noted the wording of the concluding paragraphs in the stipulation, which say the school “points out that these stipulations were made in an extreme effort to resolve this case short of an administrative hearing. Although [Brownsburg] does not agree, they are willing to offer these stipulations to be ordered and resolve the case.”

“Everything in the Stipulation was conditioned on acceptance of the offer by C.B.’s parents that they ultimately, and unequivocally, declined,” the opinion says.

It wasn’t until the officer’s finding of eligibility that the legal relationship between the parents and the school was materially altered, the 7th Circuit ruled, making it the first time Brownsburg was found to have a legal obligation to provide C.B. with special education services.

“Therefore, C.B.’s parents are the prevailing party of the administrative proceedings before the IHO,” the opinion says.

The 7th Circuit noted it was only holding that attorney fees could be awarded to the parents, without expressing whether they should be.

The case was remanded for further consideration.

The case is A.B. and D.B., individually and as parents of C.B., a disabled minor v. Brownsburg Community School Corporation, 22-1277.

Court of Appeals of Indiana

Aug. 28

James Andry v. Leo Thorbecke

22A-CT-2942

‘Bright-line rule’ precluded accepting untimely response to summary judgment motion, COA rules in reversal

A man’s late response to a motion for summary judgment should not have been accepted, even though it wasn’t electronically delivered to counsel because of a “technical error,” the Court of Appeals of Indiana has ruled in reversing a lower court’s decision.

Leo Thorbecke filed a complaint with the Monroe Circuit Court after a medical review panel rendered a decision in favor of Dr. James Andry, whom Thorbecke accused of medical malpractice that resulted in his wife’s death.

Andry filed a motion for summary judgment in September 2022 based on the panel’s decision in his favor and Thorbecke’s lack of contrary expert evidence.

Thorbecke responded four days later with a “Motion to Strike, or in the Alternative, to Enter and Continue Defendant’s Motion for Summary Judgment Until Discovery is Initiated and Completed.”

In the motion, Thorbecke indicated he had experts but preferred to not disclose their opinions to the defense prior to discovery.

He also acknowledged that under Indiana Trial Rule 56(C), he had 30 days from the date of the motion for summary judgment was filed to respond, but he asked the trial court to alter the time limit under T.R. 56(I).

Andry filed a response the next day, arguing that Thorbecke was “essentially asking for an indefinite extension of time to respond to Defendant’s MSJ pursuant to Trial Rule 56(I),” and that the request should be denied for lack of good cause.

The trial court denied the motion to strike on Sept. 23, 2022.

The order indicated it was being distributed via e-service, but no email notice was sent to Thorbecke’s counsel, who learned of the denial on Oct. 19 when he saw it on the online chronological case summary.

That evening, Thorbecke filed a response to the motion for summary judgment. The response included two affidavits from physicians.

On Oct. 20, 2022, Andry moved to strike the response because it was filed two days after the 30-day deadline.

Thorbecke acknowledged the untimeliness of his response but asked the trial court to accept it because counsel didn’t receive notice of the denial, admittedly neglecting to calendar the deadline for responding to the motion.

Andry objected, arguing the “bright-line rule” established by caselaw precludes consideration of untimely filed summary judgment documents regardless of the circumstances.

On Nov. 9, 2022, the trial court granted leave to Thorbecke to file the response, citing “a technical error.”

On interlocutory appeal, the Court of Appeals reversed the ruling, finding the trial court lacked authority to deviate from the bright-line rule.

The bright-line rule, the Court of Appeals said, is “well established,” citing HomEq Servicing Corp. v. Baker, 883 N.E.2d 95 (Ind. 2008).

“When a nonmoving party fails to respond to a motion for summary judgment within 30 days by either filing a response, requesting a continuance under Trial Rule 56(I), or filing an affidavit under Trial Rule 56(F), the trial court cannot consider summary judgment filings of that party subsequent to the 30-day period,” the opinion stated, quoting from HomEq.

Thorbecke tried to avoid the bright-line rule by arguing that the trial court, under T.R. 72(E), had discretion to extend the response deadline because of the failed service of the order denying the motion to strike.

But the Court of Appeals disagreed.

“Here, the CCS plainly indicates that service of the order denying the Motion to Strike was mailed to Thorbecke’s counsel the day it was issued,” the opinion says. “It is of no moment that notice was sent by mail rather than electronically.”

The case was remanded for further proceedings on the motion for summary judgment, with instructions that the trial court may not consider the late filings.

Chief Judge Robert Altice wrote the opinion. Judges Melissa May and Peter Foley concurred.

The case is James Andry v. Leo Thorbecke, 22A-CT-2942.

Aug. 31

On the Level Fence & Deck, Inc. v. Indiana Bell Telephone Company d/b/a AT&T Indiana

22A-CT-3073

Fencing company failed to answer complaint because of excusable neglect, COA rules in reversal

It was reasonable for a fencing company that was being sued to believe its insurer would know about and handle the complaint, a split Court of Appeals of Indiana has ruled in reversing a lower court’s decision.

On the Level Fence & Deck was digging holes for a fence in Crown Point in July 2020 when it damaged underground utility lines owned by AT&T, according to court records.

AT&T sued the company, alleging negligence, trespass and statutory violations.

On the Level didn’t answer the complaint, though, and AT&T moved for default judgment, which the Lake Superior Court granted three days later in August 2020. The court entered a default judgment against On the Level in the amount of $12,130.

More than two weeks later, an attorney for On the Level called AT&T’s counsel and left a voicemail about the default judgment.

Another attorney who had been retained by On the Level’s insurer later wrote to AT&T’s counsel explaining that On the Level “mistakenly believed that the insurance company was aware of the suit.”

The letter asked AT&T to agree to vacate the default judgment, but AT&T rejected the request.

On the Level moved to set aside the default judgment under Trial Rule 60(B)(1), arguing it failed to answer the complaint as a result of excusable neglect.

AT&T argued On the Level had no reason to believe its insurer “would have notice of the lawsuit or complaint without On the Level communicating that information or providing a copy of it to the insurance company.”

The court denied On the Level’s motion, finding the company “appears” to have a meritorious defense but had not shown excusable neglect.

On the Level appealed, and the Court of Appeals agreed the trial court’s decision should be reversed.

On the Level filed its motion within a year of the default judgment, as required by Trial Rule 60(B)(1), the Court of Appeals said. The opinion also notes the trial court’s determination that the company adequately alleged a meritorious defense, which AT&T didn’t challenge on appeal.

“Therefore,” the opinion says, “the only issue before us is whether On the Level showed that its failure to answer AT&T’s complaint was the result of ‘mistake, surprise, or excusable neglect.’”

On the Level argued that because AT&T was communicating directly with its insurer before filing suit, the company reasonably believed that its insurer would know about the lawsuit and continue handling matters as it had been up to that point.

The trial court didn’t address that argument in its order, and AT&T didn’t respond to it on appeal, the opinion says.

“Under the circumstances, we agree with On the Level that its failure to contact its insurer after being served with the complaint amounts to excusable neglect,” the opinion says. “To be sure, On the Level should have contacted its insurer out of an abundance of caution. But by all indications, On the Level, a fence and deck company, is not a sophisticated party with significant litigation experience. … Therefore, it was reasonable for On the Level to believe that AT&T would continue communicating directly with On the Level’s insurer after filing suit and that the insurer had things under control.”

The Court of Appeals remanded the case back to the trial court for further proceedings on the merits of AT&T’s complaint.

Judge Nancy Vaidik wrote the opinion, with Judge Elizabeth Tavitas concurring.

The case is On the Level Fence & Deck, Inc. v. Indiana Bell Telephone Company d/b/a AT&T Indiana, 22A-CT-3073.

In a dissenting opinion, Judge Peter Foley said he would affirm the trial court’s denial of the motion to set aside the default judgment.

“I agree with the trial court that On the Level failed in meeting its burden of demonstrating excusable neglect,” he wrote.

Foley said On the Level failed to present evidence or testimony about what communications it had with its insurer, and that it didn’t explain why it failed to take any action in response to the suit.

“I am not unmindful that the balancing of judicial efficiency against the preference for deciding cases on their merits, as identified by the majority, may tilt in On the Level’s favor,” he wrote. “Nonetheless, I believe On the Level failed to meet its factual burden to demonstrate excusable neglect. It is my opinion that reversal on this record would dilute the distinction between neglect and excusable neglect as to effectively eliminate it.”

Sept. 5

Perdue Farms, Inc. v. L&B Transport, LLC; U.S. Security Associates, Inc.; William Richardson; Jennifer Freeman; Brian Hill; Carl Nelson; ABC Corporation

22A-PL-2989

COA reverses, remands trial court decision after finding enforcement of clause determining jurisdiction would not be ‘just or reasonable’

The Court of Appeals of Indiana reversed a trial court’s judgment that granted a motion to dismiss in a case involving extensive damages and cleanup at a southwestern Indiana poultry processing plant.

According to court records, Perdue Farms Inc. is a company based in Maryland, but it has a poultry processing plant in Daviess County.

The plant processes about a million pounds of meat per day. In 2015, Perdue entered into a service agreement with U.S. Security Associates Inc., which included a forum selection clause stating that any lawsuit that would arise from either party would be brought to the U.S. District Court for the District of Maryland.

In August 2018, William Richardson, who was an employee of L&B Transport, made an unannounced delivery to Perdue Farms’ plant outside of its normal business hours.

He informed the gate employees that he was delivering bleach. They directed him to the bleach tank, where he connected his truck to the tank and began filling it. Richardson didn’t watch the transfer, but instead waited in his truck.

However, Richardson was not transporting bleach but rather aluminum chloride.

The transfer caused a chemical reaction, creating fog and foam in multiple rooms of the plant.

The plant had to shut down for multiple days to clean and repair, and Perdue had to replace damaged equipment costing more than $1.2 million.

In May 2021, Perdue filed an amended complaint in Daviess Circuit Court against Richardson, L&B, U.S. Security and several of its employees, as well as other entities, for negligence, strict liability and breach of contract.

U.S. Security and the employees filed a Trial Rule 12(B)(3) motion to dismiss the complaint pursuant to the forum selection clause.

Perdue responded, claiming that the Indiana trial court was the appropriate venue to address the claims and enforcing the forum selection clause would result in multiple concurrent lawsuits.

In October 2022, the trial court granted U.S. Security and the employees’ motion to dismiss. It found that the forum selection clause was “valid and enforceable.”

The Court of Appeals reversed the lower court’s ruling and remanded the case for further proceedings.

The issue Perdue brought to the appellate court was whether the court erred when it granted U.S. Security and the employees’ motion to dismiss the complaint pursuant to a forum selection clause.

“… (T)here is no dispute that the forum selection clause does not apply to Richardson or L&B, and there is no dispute that a Maryland court would not have personal jurisdiction over either Richardson or L&B,” Judge L. Mark Bailey wrote. “As a result, if we were to enforce the forum selection clause, Perdue would be forced to litigate its claims against U.S. Security and the Employees in Maryland while maintaining an action against Richardson and L&B in Indiana.”

The appellate court found that Perdue met its burden to demonstrate that enforcement of the forum selection clause would not be just or reasonable.

While Judge Dana Kenworthy concurred with the judgment, Judge Terry Crone dissented with a separate opinion.

“I believe that Perdue has no valid basis for crying ‘foul’ here and chickening out on the forum selection clause that it undoubtedly insisted on including in its contract with U.S. Security to shield it from being haled into court in Indiana,” Crone wrote.

Crone concluded that Perdue would have to live with the contractual bargain that it made with U.S. Security.

The case is Perdue Farms, Inc. v. L&B Transport, LLC; U.S. Security Associates, Inc.; William Richardson; Jennifer Freeman; Brian Hill; Carl Nelson; ABC Corporation, 22A-PL-2989.

Sept. 6

Matthew D. Englehardt v. State of Indiana

22A-CR-1760

Man convicted in second trial after mistrial faced double jeopardy, split COA rules in reversal

A man convicted and sentenced for sexual misconduct with a minor following a mistrial faced double jeopardy in the subsequent trial, a split Court of Appeals of Indiana has ruled in reversing a lower court’s decision.

Matthew Englehardt was charged with one count of Level 4 sexual misconduct with a minor and three counts of Level 5 sexual misconduct with a minor after his daughter accused him of touching her inappropriately and forcing her to touch him inappropriately.

Before trial in the Wells Circuit Court, the state filed a motion in limine seeking to prohibit Englehardt from presenting any evidence regarding “the character for truthfulness or untruthfulness of any witness or presenting any extrinsic evidence to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness[.]”

The trial court granted the motion.

Before Englehardt called a witness, the court held a hearing regarding the state’s motion and allowed him to present the testimony outside the presence of the jury as an offer of proof.

The witness testified the child “feeds off of negative attention” and “wants drama.”

The court ruled the testimony was not admissible but determined the witness could testify regarding her observations of the girl around the dates in question.

In front of the jury, the witness testified she had worked for the Indiana Department of Child Services for about nine years and is “pretty familiar” with children. She said she had a relationship with Englehardt from 2010 to 2014, during which time they had a child.

The witness said she helped raise the children.

Englehardt asked the witness if she ever helped take care of the children with “things like baths.”

The witness said she “usually did all the baths” so that “nothing can ever come out that anything has happened, just because I’ve learned from my history of my job.”

She continued: “Um — there’s also just some concerns about M.V.1’s behavior that — I — we just wanted to be more cautious —.”

The state objected to the testimony on the ground that it violated the motion in limine and moved for a mistrial.

The court granted the motion, finding in part that the jury may put too much emphasis on the witness having worked for DCS.

A new trial began in May 2022, and a jury found Englehardt guilty as charged. He was sentenced to 10 years and ordered to register as a sex offender for life.

On appeal, Englehardt argued there was no manifest necessity for the court to declare a mistrial and that his subsequent trial subjected him to procedural double jeopardy.

Even if the testimony attacked the girl’s character and credibility, Englehardt argued the proper course of action would have been to strike the testimony and give a limiting instruction to the jury.

A majority of the Court of Appeals panel agreed.

At trial, the judge asked counsel if a limiting instruction and jury admonishment would work following the testimony, but the state said the testimony was “not just a simple violation.”

“We agree with Englehardt that that testimony is ‘vague’ and does not imply that M.V.1 is dishonest or would falsely accuse her father of inappropriate actions,” the opinion says. “Rather, the implication from that testimony is that she handled bathing the children because she was familiar with children as a result of her job with DCS.”

The Court of Appeals said there was nothing egregious about the testimony, “let alone anything so egregious as to warrant a finding of manifest necessity.”

Even if the testimony did attack the girl’s credibility, the opinion says Indiana Evidence Rule 608(a) provides that a “witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character.”

“To the extent it violated the motion in limine, we see no reason why an admonishment would not have been adequate to cure any problem with Johnson’s brief testimony,” the opinion says. “And a mistrial is only warranted when no other curative action can be expected to remedy the situation.”

Judge L. Mark Bailey wrote the opinion. Judge Terry Crone concurred with a separate opinion, and Judge Dana Kenworthy dissented with a separate opinion.

The case is Matthew D. Englehardt v. State of Indiana, 22A-CR-1760.

In his concurring opinion, Crone wrote the only matter of importance is the witness statement itself.

“By definition, admissible evidence cannot create a manifest necessity for a mistrial,” Crone wrote.

To conclude otherwise, he wrote, would “gut the constitutional protection against double jeopardy.”

In her dissenting opinion, Kenworthy said she would affirm the trial court’s decision.

“A criminal defendant ought not be rewarded for violating a trial court’s orders,” she wrote.

Kenworthy referenced “several relevant facts” beyond the witness testimony, including giving the parties an opportunity to be heard regarding the admissibility of defense testimony about the child’s character.

Kenworthy also wrote that the U.S. Supreme Court has noted there is a “spectrum” of trial problems that may warrant a mistrial, referencing Arizona v. Washington, 434 U.S. 497, 510 (1978).

Based on the facts and trial court’s assessment of the defense’s culpability, Kenworthy wrote “this case of defense misconduct should fall on the ‘special respect’ end of the spectrum.”

The result also “undermines the rationale behind double jeopardy,” she wrote.

“Had the defense followed the trial court’s order on motion in limine and the jury trial concluded in a guilty verdict, Englehardt could have appealed the exclusion of character evidence,” Kenworthy wrote. “The remedy for error in that scenario would be retrial. Instead, bad behavior by the defense here nets the ultimate reward — acquittal.”

Indiana Tax Court

Sept. 1

Elkhart County Assessor v. Lexington Square, LLC

22T-TA-7

IN Tax Court affirms review board’s decision in Elkhart property assessment dispute

An Elkhart multibuilding apartment property’s disputed tax assessments for 2016, 2017 and 2018 should revert to the property’s 2015 assessed value, the Indiana Tax Court affirmed in upholding the Indiana Board of Tax Review’s ruling.

According to court records, in September 2016, Lexington Square LLC purchased a multibuilding apartment complex in Elkhart.

While that property had been assessed at $3,490,500 for tax year 2015, the Elkhart County assessor increased the property’s assessment to $7,683,000 for tax year 2016, $7,028,200 for tax year 2017 and $7,059,800 for tax year 2018.

The increases in value were attributable, in part, to the assessor’s removal of an obsolescence adjustment that the property had formerly received.

Alleging that the 2016 to 2018 assessments were not only incorrect, but also were unfair when compared to the assessments of other apartment complexes in Elkhart County, Lexington Square initiated appeals first with the Elkhart County Property Tax Board of Appeals and then with the Indiana Board of Tax Review.

The Indiana board conducted a consolidated hearing on all of Lexington Square’s appeals on May 18, 2021.

During the Indiana board hearing, the assessor admitted that because she increased the subject property’s assessment by more than 5% between 2015 and 2016, Indiana Code § 6-1.1-15-17.2 dictated that she bore the burden of proof on the valuation issue.

The parties agreed, however, that the burden of proof on the uniformity issue resided with Lexington Square.

To demonstrate that her assessment valuations were correct, the assessor submitted an appraisal, completed in conformance with the Uniform Standards of Professional Appraisal Practice, that valued the subject property between $7,277,349 and $7,990,000 during each of the years at issue.

In rebuttal, Kevin Donohoe, the vice president of Lexington Square’s property management company, testified that he believed the subject property’s assessed value should have been between $6,776,466 and $7,535,545 during each of the years at issue.

Donohoe explained that he arrived at those values by applying a capitalization rate to the average of the property’s actual net operating income for tax years 2015 through 2017.

With respect to the uniformity issue, Lexington Square presented the Indiana board with evidence that compared recent sales prices of numerous other apartment complexes in Elkhart County to their assessment values, asserting that it demonstrated that those properties were “underassessed” on average by more than 26%.

Lexington Square asserted that its property, in contrast, was underassessed by only 4%.

The Indiana board’s final determination, issued on March 24, 2022, was based on the Indiana Tax Court’s decision in Southlake Indiana, LLC v. Lake County Assessor (Southlake II), 181 N.E.3d 484, 489 (Ind. Tax Ct. 2021), finding that the assessor did not prove her assessment was “correct” because her appraisal evidence did not conclude “exactly and precisely” to the actual assessed values she applied during the years at issue.

Likewise, the Indiana board found that Lexington Square had failed to show what the proper value of its property should have been because “Don[o]hoe based his analysis solely on the subject property’s historical income, expenses, and occupancy without comparing that data to the market.”

Regarding the uniformity issue, the Indiana board determined that Lexington Square failed to demonstrate that it was unfairly assessed in comparison to other similarly situated properties, explaining that its evidence failed to comport with any of the standards for ratio studies as set forth by both the Indiana Department of Local Government Finance and the International Association of Assessing Officers.

Accordingly, because neither party proved the property’s correct assessed value, the Indiana board ordered that each of Lexington Square’s contested assessments revert to the property’s 2015 assessed value in accordance with I.C. 6-1.1-15-17.2.

The assessor petitioned for a rehearing, claiming that the Indiana board had erroneously applied the burden of proof.

The Indiana board denied the assessor’s petition for rehearing.

The assessor appealed.

The Tax Court affirmed the Indiana board’s final determination.

Writing for the tax court, Judge Martha Blood Wentworth said in its final determination, the Indiana board concluded that under I.C. 6-1.1-15-17.2, the assessor bore, but failed to meet, her burden of proving that her 2016 to 2018 assessments of Lexington Square’s property were correct.

According to Wentworth, the Indiana board also found that Lexington Square failed to demonstrate what the correct assessment should be.

As a result, the Indiana board applied the reversionary clause and ordered Lexington Square’s 2016 to 2018 assessments to revert to the property’s 2015 assessed value of $3,490,500.

Wentworth wrote that, on appeal, the assessor argued that the Indiana board got it all wrong.

The assessor asserted that I.C. 6-1.1-15-17.2 no longer applied to this case once the statute was repealed on March 21, 2022, three days before the Indiana board issued its final determination.

In support of her position, the assessor listed several Indiana cases stating that “‘in the absence of a legislative enactment to the contrary, the repeal of a statute without a saving[s] clause, where no vested right is impaired, completely obliterates it, and renders the same as ineffective as if it had never existed.’”

“The Assessor’s ‘analysis’ fails to recognize, however, the line of Indiana cases that explain an express savings clause is not required to prevent the destruction of rights existing under a repealed statute if the Legislature’s intention to preserve and continue those rights is otherwise clearly apparent,” Wentworth wrote.

Wentworth wrote that if the Tax Court were to declare the repeal of I.C. 6-1.1-15-17.2 had retroactive effect, “the rules of play” would be unfairly changed midstream.

A re-do in every single one of the still-pending cases would be necessary to provide taxpayers an opportunity to develop and implement new litigation strategies aligned with the new allocation of the burden of proof, Wentworth wrote.

“Reworking all pending appeals is absurd because the amount of time needed to resolve them would be significantly prolonged, an undue strain would be placed on administrative level resources, and costs of litigation would greatly increase. This is surely not the result the Legislature, as a reasonable body, would have intended. Accordingly, the Court declines the Assessor’s invitation to apply the repeal of Indiana Code § 6-1.1-15-17.2 retroactively,” Wentworth wrote.

The case is Elkhart County Assessor v. Lexington Square, LLC, 22T-TA-7.•