Indiana Court Decisions: Nov. 3-15, 2022

Keywords Court opinions

7th Circuit Court of Appeals

Nov. 4

Karrine Milhem v. Kilolo Kijakazi, Acting Commissioner of Social Security

22-1488

7th Circuit affirms denial of disability benefits, agrees 89,000 is ‘significant’ number of jobs

A woman seeking disability benefits has lost her argument that a judge improperly found there were a “significant” number of jobs she could perform despite her disabilities.

Karrine Milhem applied for Social Security disability insurance benefits and supplemental security income, alleging that, since Nov. 19, 2018, several conditions limited her ability to work, including heart problems, back problems, alcohol withdrawal, anxiety, depression and hallucinations.

Milhem was 38 years old when she applied and had completed three years of college. She had also previously worked as a canvasser, receptionist, portrait photographer and graphic designer.

Her claims were denied initially and upon reconsideration. Milhem then sought review by an administrative law judge.

At a Social Security hearing, an ALJ used a five-step evaluation to assess whether a claimant may engage in substantial gainful activity, inquiring whether:

1. The claimant is presently employed.

2. The claimant has a severe impairment or combination of impairments.

3. The claimant’s impairment meets or equals any impairment listed in the regulations as being so severe as to preclude substantial gainful activity.

4. The claimant’s residual functional capacity leaves him or her unable to perform his or her past relevant work.

5. The claimant is unable to perform any other work existing in significant numbers in the national economy.

During Milhem’s hearing, a vocational expert testified that there were 89,000 jobs in the national economy that she could perform, adding together the number of jobs available as an addresser, table worker and document preparer.

Based on this testimony, and “considering [Milhem’s] age, education, work experience, and residual functional capacity,” the ALJ found at step five that there were a significant number of jobs that Milhem could perform. Thus, the ALJ thus concluded Milhem was not under a qualifying disability.

The Social Security Appeals Council denied Milhem’s request for review, rendering the ALJ’s decision final. She then appealed to the Indiana Northern District Court, arguing the ALJ’s findings on step five were not supported by substantial evidence.

Specifically, Milhem contended the commissioner of Social Security failed to meet the step-five burden because the ALJ did not determine how many jobs Milhem could perform as a percentage of total jobs in the national economy. Per Milhem, the ALJ did not ask the vocational expert how many jobs existed in the national economy in total, so “the percentage calculation necessary to gauge significance was not made.”

Milhem also argued that because 89,000 jobs accounted for just 0.0567% of the total jobs in the national economy, the ALJ failed to identify a significant number of jobs Milhem could perform.

The district court affirmed the ALJ’s determination, explaining that although “this circuit lacks clear guidance on what constitutes a ‘significant number’ of jobs in the national economy,” 89,000 jobs met that threshold. The district court grounded its conclusion in an unpublished decision, Knapp v. Saul, 2021 WL 536121, at *4–5 (N.D. Ind. Jan. 27, 2021), report and recommendation adopted, 2021 WL 536483 (N.D. Ind. Feb. 12, 2021), in which the court had found that 67,500 jobs in the national economy was a significant number.

Before the 7th Circuit Court of Appeals, Milhem offered a trio of arguments for why the step-five determination was flawed:

1. There must be a regulation defining how many jobs are “significant” for a step-five determination to be made.

2. Even if the term “significant” can be defined by adjudication, neither the ALJ nor the commissioner presented a standard by which significance is to be assessed.

3. 89,000 jobs in the national economy is not a significant number of jobs.

After finding Milhem waived her first argument because she failed to present it to the district court, the 7th Circuit turned to the merits on the second and third arguments — both of which failed.

“It is within the ALJ’s discretion to determine whether jobs exist only in very limited number,” Judge Michael Brennan wrote, citing Biestek v. Berryhill, 139 S. Ct. 1148 (2019). “This determination does not depend upon the establishment of a standard for significance.

“Milhem’s second argument is also rejected in light of the Supreme Court’s approach to categorical rules in Social Security hearings,” Brennan continued. “The Court has observed that these hearings are ‘informal,’ that ‘strict rules of evidence, applicable in the courtroom’ do not apply, and that the ‘substantial evidence’ standard is assessed on a ‘case-by-case’ basis.”

Regarding the third argument, the judges found Milhem’s reliance on Sally S. v. Berryhill, 2019 WL 3335033, at *11 (N.D. Ind. Juy 23, 2019), was “misplaced.”

“There, the district court held that the Commissioner had not presented substantial evidence establishing significance because the Commissioner did not cite any cases discussing national, as opposed to regional, numbers of jobs in its briefing before that court,” Brennan wrote. “That decision is not binding on this court and does not account for this court’s decision in (Weatherbee v. Astrue, 649 F.3d 565 (7th Cir. 2011)), where we concluded that 140,000 national jobs was a ‘significant’ number under step five of the analysis.

“… In determining whether there is a ‘significant’ number of jobs in the national economy, the regulatory scheme gives the ALJ discretion to decide, using substantial evidence, when a number of jobs qualifies as significant,” Brennan continued. “Substantial evidence means ‘evidence a reasonable person would accept as adequate to support the decision.’

“… The ALJ’s hypotheticals to the vocational expert revealed that she weighed the testimony presented and determined that Milhem could at least perform sedentary work,” the appellate judge concluded. “The ALJ further assessed the tolerance for absences in these positions, the requirements for being on task in the workplace, and the frequency of breaks during the workday, all reflecting the ALJ’s conclusions about Milhem’s capacity to perform work. On this record, a reasonable person would accept 89,000 jobs in the national economy as being a significant number.”

The case is Karrine Milhem v. Kilolo Kijakazi, Acting Commissioner of Social Security, 22-1488.

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Nov. 7

United States of America v. Antwain Moore

21-2485

7th Circuit vacates 10-year sentence after district court wrongly dismisses evidence of drug purity

A split 7th Circuit Court of Appeals has vacated a 10-year prison sentence for a drug dealer after finding a district court failed to address “some evidence” suggesting inaccurate drug testing. However, in a dissent, one judge warned the majority’s opinion “invites baseless challenges to drug quantity determinations.”

Antwain Moore was sentenced to 10 years in federal prison for multiple drug offenses. One factual foundation for the sentence was the Indiana Southern District Court’s finding that 55.6 grams of methamphetamine found in Moore’s home were 100% pure.

On appeal, Moore argued a chemist’s affidavit that he had submitted was “some evidence” sufficient to call the purity finding into question, and that the government failed to support the finding on purity. Further, Moore argued the district court erred by placing a burden on him to perform independent testing and by assuming, without supporting evidence, that the Drug Enforcement Administration’s methods for testing purity were reliable and were applied correctly in his case.

In a split opinion, the 7th Circuit majority agreed with Moore and remanded for resentencing after finding the “some evidence” standard is not a demanding one.

“We agree with Moore that the district court erred when it determined that the government had ‘established the purity level by a preponderance of the evidence,’ and that ‘there was no indication here or no evidence before the Court that [the DEA] protocols are not reliable,’” Judge David Hamilton wrote, joined by Judge Candace Jackson-Akiwumi. “The government submitted DEA test results that were not supported by any affidavit. When the reliability was questioned in Dr. (Derek) Beauchamp’s affidavit, the government chose to rest on an assumption that the district court adopted: that the DEA has reliable and generally accepted methods of testing drug purity.

“We assume that’s probably true as a general matter, but in a particular case, a defendant whose liberty is at stake is entitled to hold the government to its burden of proof by a preponderance of reliable evidence,” the majority continued. “An unsupported assumption does not tell us anything about whether test results in a particular case can reasonably be relied upon.”

The 7th Circuit majority went on to opine that the district court rejected Beauchamp’s affidavit “without addressing it explicitly.”

“The government suggested at oral argument that requiring it to demonstrate the reliability of DEA drug analyses at sentencing would waste resources and allow defendants to clog up the courts with specious objections. We do not agree,” Hamilton wrote. “… We are not persuaded by the government’s parade of system-choking horribles. The familiar requirement that the defendant ordinarily offer ‘some evidence’ supporting an objection to factual assertions in a presentence investigation report should weed out most baseless objections.”

On remand, the majority instructed the district court not to rely on the test results without requiring the government to furnish affirmative support for their reliability and allowing Moore to challenge that evidence.

In a five-page dissent, Judge Thomas Kirsch opined the district court didn’t err, writing that it was Moore’s burden and that he “offered only the speculative observations of a chemist who provided nothing to cast doubt on the accuracy of the DEA’s lab report.”

“The majority’s approach invites baseless challenges to drug quantity determinations,” Kirsch wrote. “Even when a defendant offers no evidence suggesting that the government’s lab testing results are inaccurate, according to the majority, a defendant need only point to an alternative method that ‘could lead to a potential lower purity of the sample.’ This result runs contrary to (United States v. Mays, 593 F.3d 603 (7th Cir. 2010)) and our precedents, which require a defendant to furnish more than mere speculation to undermine facially reliable information in the PSR. See, e.g., United States v. Betts-Gaston, 860 F.3d 525, 539 (7th Cir. 2017) … .

“… (D)efendants who choose this route should proceed cautiously,” Kirsch continued. “’In the mine run of cases,’ the majority assures, ‘a defendant who has already been convicted of a drug offense will often have reason to know whether contesting purity would be worthwhile.’ I agree that defendants like Moore are well-positioned to know whether their objections to the purity of the substances they intended to market will have any merit. A baseless objection to drug quantity will not only leave the defendant’s base offense level unchanged, it may well result in a higher total offense level at the end of the day, a risk that Moore now runs in this case.

“District courts have broad discretion to deny acceptance of responsibility credit to a defendant who frivolously contests drug quantity findings that are ‘amply supported by the record,’” Kirsch concluded. “… Whether Moore’s objection falls into that category is for the district judge to decide in the first instance on remand.”

The case is United States of America v. Antwain Moore, 21-2485.

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Nov. 8

Dulce M. Zaragoza v. Merrick B. Garland, Attorney General of the United States

19-3437 & 20-1591

Immigration appeals case wrongly applied new precedent retroactively

A Mexican citizen lawfully living in the United States will have a chance to revisit her challenge to removal proceedings after the 7th Circuit Court of Appeals determined a new rule was impermissibly applied to her case retroactively.

Dulce Zaragoza, a native and citizen of Mexico and a lawful permanent resident of the United States, pleaded guilty in 2014 to the Indiana offense of criminal neglect of a dependent after locking her 6-year-old son in a closet for six hours. Zaragoza was sentenced to one year in jail suspended to time served plus 30 days, with the remainder of the sentence to be served on probation.

After completing her sentence, Zaragoza traveled abroad. When she presented herself for admission to the U.S. when she returned, the Department of Homeland Security found her inadmissible based on her conviction, which the agency classified as a “crime involving moral turpitude.” Zaragoza was then placed in removal proceedings.

Zaragoza fought removal on several grounds. Before an immigration judge, she argued that the Indiana neglect offense did not qualify as a crime involving moral turpitude.

The judge disagreed and entered a removal order, and Zaragoza appealed to the Board of Immigration Appeals. In the meantime, she petitioned the state court to modify her sentence.

The state court obliged and reduced her one-year sentence to 179 days. With that order in hand, Zaragoza argued before the BIA that Indiana’s neglect offense is not a crime involving moral turpitude and that the petty-offense exception applies.

The BIA rejected both arguments, agreeing with the immigration judge that the Indiana offense is categorically a crime involving moral turpitude, further holding that the sentence-modification order was not effective to establish Zaragoza’s eligibility for the petty-offense exception.

For the latter conclusion, the immigration board relied on a recent U.S. attorney general decision, Matter of Thomas & Thompson, 27 I. & N. Dec. 674, 690 (2019), which declared that state-court sentence modification orders are effective for immigration purposes only if based on a legal defect in the underlying criminal proceeding.

Zaragoza then sought reconsideration, this time adding two more arguments: (1) the phrase “crime involving moral turpitude” is unconstitutionally vague, and (2) the attorney general’s decision in Thomas was impermissibly retroactive as applied to her.

The BIA shot down both contentions.

Zaragoza petitioned for review in the 7th Circuit, reprising the entire array of arguments she presented to the board.

In a unanimous decision, the appellate judges agreed with the BIA’s resolution of all issues but one: the application of Thomas to Zaragoza’s case was, in fact, “impermissibly retroactive application of a new rule,” the court held.

As for the vagueness question, the appellate judges pointed to Jordan v. De George, 341 U.S. 223 (1951), Dominguez-Pulido v. Lynch, 821 F.3d 837 (7th Cir. 2016), and Islas-Veloz v. Whitaker, 914 F.3d 1249 (9th Cir. 2019), in rejecting her claim that the phrase “crime involving moral turpitude” is constitutionally vague.

Then, judges concluded that Zaragoza’s neglect-of-a-dependent crime was one involving moral turpitude.

“So defined, the Indiana neglect offense categorically matches both elements of the generic definition of a ‘crime involving moral turpitude,’” Chief Judge Diane Sykes wrote. “First, and more straightforwardly, the offense requires a sufficiently culpable mental state.

“… Second, the neglect offense requires ‘reprehensible conduct,’” Sykes continued. “Abandoning or cruelly confining a dependent, as the Indiana courts interpret this offense, qualifies as ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.’”

Additionally, the panel held that the BIA correctly recognized Zaragoza failed to demonstrate a “realistic probability” that the neglect statute will be applied to actions causing only minor mental distress, rather than conduct that is “inherently base, vile, or depraved.”

Turning to the petty-offense exception, judges noted the inadmissibility bar is lifted for first-time offenders like Zaragoza if the crime in question was punishable by one year or less and the sentence did not exceed six months.

The issue laid in whether that applied after the sentence modification.

Zaragoza argued in her reconsideration motion that applying Thomas to her was an impermissibly retroactive application of a new rule. The 7th Circuit agreed.

“… (T)his case is closer to our decision in Jeudy v. Holder, 768 F.3d 595 (7th Cir. 2014). There, an immigrant committed a removable offense after living in the United States for six years,” Sykes wrote. “He continued to live in the United States, and just a year later, he became eligible to request cancellation of removal since he had continuously lived in the country for seven years.

“Congress later enacted a ‘stop-time rule, ‘which stops the seven-year continuous-residency clock when an immigrant commits a removable offense. … Because Jeudy had committed the removable offense before the seven years were up, the BIA concluded that he was ineligible to apply for cancellation of removal,” Sykes continued. “…. We disagreed, instead holding that the stop-time rule was impermissibly retroactive as applied in Jeudy’s case because he ‘was actually eligible for discretionary relief before [the new stop-time rule] took effect.’ … The same is true here.

“A postconviction event — Zaragoza’s sentence modification — gave her a right to relief from removal, only to be taken away by Thomas. Because the state court’s sentence-modification order predated Thomas, the decision is retroactive as applied to her,” she wrote.

The panel concluded, “In sum, all but one of the (Velásquez-García v. Holder, 760 F.3d 571 (7th Cir. 2014)) factors weigh against retroactive application of Thomas in Zaragoza’s case. Accordingly, we conclude that applying the new rule to her would work a manifest injustice.”

Thus, judges granted the petitions for review and remanded to the BIA for further proceedings consistent with the opinion.

The case is Dulce M. Zaragoza v. Merrick B. Garland, Attorney General of the United States, 19-3437 & 20-1591.

Court of Appeals of Indiana

Nov. 3

Penny Korakis v. Memorial Hospital of South Bend, Michael R. Messmer, D.O., David A. Halperin, M.D

22A-CT-867

COA affirms for doctors, hospital in negligence suit, seeks guidance from Supreme Court

Doctors who failed to properly read a woman’s X-rays of broken bones won judgment from the Court of Appeals of Indiana, which concluded that the patient’s expert affidavit was insufficient to create a genuine issue of material fact about the standard of care she should have received.

After being treated at Memorial Hospital of South Bend following a car accident, Penny Korakis brought a medical malpractice action against emergency medicine physician Dr. David A. Halperin and osteopathic medicine physician Dr. Michael R. Messmer, as well as the hospital, alleging negligent care and treatment.

Korakis had reported pain extending from her left hand to her left shoulder after the accident, and subsequent X-rays and a diagnosis by Halperin revealed she was suffering from an acute soft tissue injury. Korakis was then referred to treatment by Messmer, who conducted several additional X-rays and ordered her to physical therapy.

The pain in her elbow continued to worsen, however, so Korakis sought a second opinion from a different doctor. It was then she learned that her elbow might have a fracture, prompting Korakis to sue Halperin, Messmer and the hospital for the care and treatment she received from them, including failures to diagnose and treat her.

The suit claimed the defendants were negligent and fell below the standard of care, including that they “failed to identify and diagnose the true extent of [her] injuries, which included broken bones.”

A medical review panel, however, opined that the evidence didn’t support the conclusion that the defendants failed to meet the applicable standard of care as charged in Korakis’ complaint.

The defendants were ultimately granted their motions for summary judgment based on the MRP opinion after the trial court ruled that Korakis’ expert affidavit from orthopedic doctor James Kemmler failed to “address the actions of each Defendant” and “state the standard of care expected by each Defendant and detail how each Defendant breached that standard of care.”

The Court of Appeals affirmed in Penny Korakis v. Memorial Hospital of South Bend, Michael R. Messmer, D.O., David A. Halperin, M.D., 22A-CT-867, disagreeing with Korakis’ assertion that Kemmler’s affidavit created genuine issues of fact making summary judgment for the defendants improper.

The COA noted that in order to oppose an MRP opinion favorable to a health care provider, Korakis was required to present expert medical testimony establishing three things:

• The applicable standard of care required by Indiana law.

• How the defendant doctor breached that standard of care.

• That the defendant doctor’s negligence in doing so was the proximate cause of the injuries complained of.

Judges found that Kemmler’s affidavit averred that Messmer’s treatment of Korakis “fell below the standard of care,” but rendered no similar opinion as to either Halperin or the hospital.

“That is, while Dr. Kemmler averred that Dr. Halperin failed to identify the fracture and misdiagnosed Korakis with a soft tissue injury, it did not state that Dr. Halperin’s failure to do so was a breach of the standard of care,” Judge Robert Altice wrote for the panel. “Likewise, the affidavit does not identify any particular negligent acts or omissions on the part of the Hospital or opine that the Hospital breached the standard of care.”

As such, the COA concluded that the affidavit did not create a genuine issue of material fact with regard to either Halperin or the hospital, and each was entitled to summary judgment.

It found similarly in Kemmler’s observation of Messmer’s treatment of Korakis, noting that, again, there was no explanation of the standard of care.

“Here, Dr. Kemmler, who practiced orthopedic medicine, did not state that he is familiar with the standard of care for a D.O. in the same or similar circumstances as Dr. Messmer, and certainly, the standard of care for an orthopedist and a D.O. are not the same,” Altice wrote. “For these reasons, Dr. Kemmler’s affidavit was insufficient to create a genuine issue of material fact with regard to Dr. Messmer.”

The COA rejected Korakis’ argument that even if Kemmler did not explicitly state what the proper standard of care was, the standard of care was implicit in his “very specific statements” about how Messmer’s treatment fell below the standard of care. Thus, she claimed, the trial court should draw inferences as to the standards of care.

However, drawing any inference about the standard of care applicable to Messmer would require undue speculation, the COA decided. As such, it found that the affidavit did not create a genuine issue of material fact precluding summary judgment for Messmer.

In a footnote, the appellate court recognized that “there exists some divergence on the extent of what must be explicitly stated with regard to the standard of care in the plaintiff’s expert’s affidavit,” with some panels of the appellate court concluding that it is “sufficient if the expert sets forth evidence from which it ‘was evident’ that the affiant was familiar with the relevant standard of care.

“We respectfully offer that further guidance from our Supreme Court on this matter would be helpful to practitioners,” the COA concluded in the footnote.

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Nov. 9

Lake Ridge School Corporation and School City of Hammond, West Lafayette Community School Corporation v. Eric Holcomb, in his official capacity as Governor of the State of Indiana; Indiana State Board of Education; Indiana Department of Education; and Todd Rokita, in his official capacity as Attorney General of the State of Indiana

22A-PL-423

School corporations can’t assert takings claims against state in charter school dispute

Three Indiana school corporations have failed to convince the Court of Appeals of Indiana to overturn a law requiring them to sell vacant public school buildings to charter schools for $1, with the appellate court agreeing with a lower court that the corporations are prohibited from pursuing their takings clause claims.

Between 2018 and 2020, Lake Ridge School Corporation, the School City of Hammond and West Lafayette Community School Corporation each closed public school buildings in their respective communities. None of the school corporations wanted to part with the vacant buildings despite being required to do so per Indiana Code §§ 20-26-7-1 and 20-26-7.1-4. Those statutes require any Indiana school corporation to make a closed public school building available for sale or lease to any interested charter school or state educational institution for $1.

If no interest is expressed, then the governing body may otherwise dispose of the building in accordance with Indiana law.

Lake Ridge and Hammond eventually sued the Indiana governor and attorney general in their official capacities, as well as the Indiana State Board of Education and the Indiana Department of Education, alleging the statutes violate the takings clauses of the Fifth Amendment to the United States Constitution and Article 1, Section 21 of the Indiana Constitution.

West Lafayette intervened in that case after previously suing the state over a vacant elementary school building that had closed in 2018.

At the time of West Lafayette’s suit, the vacant building at issue was being used as a city hall for West Lafayette for $1.5 million, according to The Associated Press.

Unlike Lake Ridge and Hammond, West Lafayette did notify the Department of Education of the school’s closing, but no charter school or state educational institution had expressed interest in the building.

The school corporations collectively sought declaratory and injunctive relief from the state parties, while the state argued in part that the school corporations could not assert takings claims against it.

The Lake Superior Court ultimately granted the state’s motion for summary judgment, ruling that the statutes do not constitute a taking without just compensation in violation of the state or federal constitution.

In affirming the trial court, the Court of Appeals concluded that the school corporations, as political subdivisions, could not sue the state under the takings clause because “the U.S. Supreme Court has long held that the Takings Clause has no role to play in intragovernmental disputes between a State and one of its agencies or political subdivisions.”

In a footnote, the appellate court declined to depart from prior caselaw and conduct a separate analysis under the Indiana takings clause, per the school corporations’ suggestion.

“The School Corporations note that the U.S. Supreme Court in Gomillion v. Lightfoot, 364 U.S. 339, 342 (1960), explained a state’s power over municipalities is not ‘absolute,’” Judge Nancy Vaidik wrote for the appellate court. “While this is true, Gomillion also states the explicit holdings in (Hunter v. City of Pittsburgh, 207 U.S. 161 (1907)) and its progeny, including (City of Trenton v. State of New Jersey, 262 U.S. 182 (1923)), remain good law.

“… Indisputably, the School Corporations here are political subdivisions of the State,” Vaidik continued. “… We conclude the School Corporations may not assert takings claims against the State.”

The case is Lake Ridge School Corporation and School City of Hammond, West Lafayette Community School Corporation v. Eric Holcomb, in his official capacity as Governor of the State of Indiana; Indiana State Board of Education; Indiana Department of Education; and Todd Rokita, in his official capacity as Attorney General of the State of Indiana, 22A-PL-423.

Indiana Tax Court

Nov. 4

Gold Coast Rand Development Corp. v. Lake County Assessor

22T-TA-10

Tax Court affirms Lake Co. assessments, cites lack of evidence in record

A development company seeking a significant reduction in Lake County tax assessments failed to offer sufficient evidence to support a reduction, the Indiana Tax Court has affirmed.

At issue in Gold Coast Rand Development Corp. v. Lake County Assessor, 22T-TA-10, are five residential properties in Gary owned by Gold Coast Rand Development Corp. Andy Young, president of Gold Coast, sought review of the 2017 tax assessments of those properties on the basis that the original assessments exceeded the valuation set forth in a 2012 settlement agreement.

But the Lake County Property Tax Assessment Board of Appeals found insufficient evidence to warrant a change in the assessments, which were valued at $3,200 for one parcel and $1,200 each for the other four.

Gold Coast responded with five individual appeals to the Indiana Board of Tax Appeals, which held telephonic hearings in February 2022. Gold Coast argued the use of telephonic hearings was prejudicial to its presentation of certain geographic evidence.

Also, on the merits, Gold Coast argued the Lake County assessor had used a “shoddy” methodology to produce the assessments, particularly as to the development of the base rates. It sought an assessment reduction to $600 for one parcel and $1,000 each for the other four.

The assessor, however, noted Young was not a certified Level III assessor-appraiser. Additionally, the assessor argued Gold Coast had offered only “its own unsupported valuation opinions rather than reliable, probative market-based evidence.”

The Indiana board agreed and affirmed the assessments. It also rejected Gold Coast’s prejudice argument, noting the company had an opportunity to request an in-person or Zoom hearing but did not do so.

The board then denied rehearing, and the case went to the Tax Court, which also affirmed.

Before the Tax Court, Gold Coast presented 12 exhibits that were not included in the certified administrative record because, according to Gold Coast, Lake County assessing officials either refused to provide information or provided “false information” until after the hearings before the Indiana board. It argued those exhibits — which included maps, emails, spreadsheets and copies of a reassessment plan, among other documents — corroborated its argument that “the Lake County assessing officials committed a litany of assessment irregularities.”

“The certified administrative record, however, belies Gold Coast’s claims,” Judge Martha Wentworth wrote. “Indeed, the record indicates that Lake County assessing officials provided Gold Coast with the documentation it requested before the Indiana Board hearings.

“… Consequently, there is no evidence before the Court that indicates that the twelve exhibits at issue constitute ‘newly discovered’ evidence,” Wentworth continued. “… Therefore, the Court will not consider the twelve exhibits attached to Gold Coast’s brief in resolving this appeal.

“Finally, even if the Tax Court were to consider Gold Coast’s twelve exhibits, they would not aid Gold Coast’s claims,” Wentworth concluded, noting several exhibits related to information from the years before or after 2017. Additionally, Gold Coast did not cite to any evidence in the certified administrative record to support its arguments.

“Finally, the Indiana Board, as trier of fact, weighed the credibility and reliability of the record evidence, finding that Gold Coast had not offered probative market-based evidence to demonstrate the five parcels’ correct values for the 2017 tax year, and the Tax Court does not have the statutory authority to review the evidence de novo. … Accordingly, the Court finds that Gold Coast has not shown that it is entitled to the relief it seeks.”•

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