Opinion
24A-PL-411
07-30-2024
Thomas DeCola, Appellant-Plaintiff v. Norfolk Southern Corporation, Inc., Appellee-Defendant
APPELLANT PRO SE Thomas DeCola North Judson, Indiana. ATTORNEYS FOR APPELLEE Barry L. Loftus Matthew M. Humble Scotty N. Teal Lafayette, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the LaPorte Circuit Court Trial Court Cause No. 46C01-2111-PL-2250, The Honorable Thomas J. Alevizos, Judge.
APPELLANT PRO SE Thomas DeCola North Judson, Indiana.
ATTORNEYS FOR APPELLEE Barry L. Loftus Matthew M. Humble Scotty N. Teal Lafayette, Indiana.
Bailey and Mathias, Judges concur.
MEMORANDUM DECISION
Altice, Chief Judge.
Case Summary
[¶1] Thomas DeCola, pro se, appeals the grant of summary judgment in favor of Norfolk Southern Corporation (Norfolk) on his complaint to quiet title to certain real property for which he had obtained a tax deed in another court. DeCola does not dispute that Norfolk's uncontested designated evidence established that Norfolk did not receive required notices prior to issuance of the tax deed to DeCola. He argues only that Norfolk could not challenge the tax deed in LaPorte Circuit Court - the court chosen by DeCola for the quiet-title action - because the tax deed had been issued by LaPorte Superior Court 2.
[¶2] We affirm.
Facts & Procedural History
[¶3] This is the second time DeCola has appealed presenting precisely the same arguments. In the first appeal, the Supreme Court set out the facts as follows:
Through a subsidiary, defendant, Norfolk [], owned property in LaPorte County, Indiana. In 2019, Norfolk fell delinquent on its property taxes. Plaintiff, Thomas DeCola, bought the property at a tax sale two years later. Afterward, the county auditor issued DeCola a property-tax deed.
Deed in hand, DeCola brought this suit against Norfolk to quiet title. He sought judgment on the pleadings, which Norfolk opposed, arguing it never received proper notice of anything -the county's decision to tax the property, the tax sale, the petition for tax deed, or its right of redemption. Norfolk attached several
exhibits to its opposition. DeCola's reply, which also included exhibits, argued the trial court lacked jurisdiction to determine whether the tax deed was void for lack of notice. Norfolk's sur-reply asked the court to enter judgment for Norfolk on all DeCola's claims. Because the trial court considered evidence outside the pleadings, it converted DeCola's 12(C) motion to one for summary judgment. See Ind. Trial Rule 12(C).
In a detailed order, the trial court rejected DeCola's jurisdictional objection and found the tax deed was void because Norfolk did not receive sufficient notice of the tax sale, the right of redemption, or the petition for tax deed. The court ordered that DeCola's "Motion for Judgment on the Pleadings (converted to Summary Judgment) is DENIED." DeCola filed a motion to reconsider. And Norfolk filed its own motion for final judgment, asking the court to award it summary judgment on all claims. The trial court did not rule on either motion and, by operation of law, the motion to reconsider was deemed denied. [See Ind. Trial Rule] 53.4(B).
DeCola appealed the denial of summary judgment. His notice of appeal said he was appealing "from a final order as defined by Ind.App. R. 2(H)." Reaching the merits, the court of appeals affirmed in a non-precedential decision. DeCola v. Norfolk S. Corp., No. 23A-PL-610, at *8, 2023 WL 4537021 (Ind.Ct.App. July 14, 2023) (mem.)....DeCola v. Norfolk S. Corp., 222 N.E.3d 938, 939 (Ind. 2023).
[¶4] The Supreme Court granted DeCola's petition for transfer, vacating this court's decision on the merits. The Court then dismissed the appeal for lack of appellate jurisdiction because the trial court had not entered a final judgment. Id. at 940 (observing that the trial court's order "disposed of nothing" and that DeCola's quiet-title action remained, as did Norfolk's lack-of-notice argument).
[¶5] Upon remand to the trial court, Norfolk filed a renewed motion for entry of final judgment. Norfolk argued that based on the trial court's previous order, which DeCola prematurely appealed, no genuine issues of material fact existed, and Norfolk was entitled to judgment as a matter of law on DeCola's complaint. That same day, January 5, 2024, the trial court granted Norfolk's motion and entered final judgment in favor of Norfolk on all claims brought by DeCola.
[¶6] Following an unsuccessful motion to correct error, DeCola now appeals. Additional information will be provided below as needed.
Standard of Review
[¶7] Our review of a trial court's grant or denial of a motion for summary judgment is de novo: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Goodwin v. Yeakle's Sports Bar &Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016); Ind. Trial Rule 56(C). In determining whether summary judgment is proper, we consider only the evidentiary material specifically designated by the parties to the trial court and construe all factual and reasonable inferences in favor of the non-moving party. Ebert v. Illinois Cas. Co., 188 N.E.3d 858, 863 (Ind. 2022). We are not bound by the trial court's findings and conclusions, and we will affirm if the trial court's entry of summary judgment can be sustained on any theory or basis in the record. Kumar v. Bay Bridge, LLC, 903 N.E.2d 114, 116 (Ind.Ct.App. 2009). Further, it is DeCola's burden on appeal to persuade us that the grant of summary judgment was erroneous. See Gaff v. Indiana-Purdue Univ. of Fort Wayne, 51 N.E.3d 1163, 1165 (Ind. 2016).
Discussion &Decision
[¶8] On appeal, DeCola does not suggest that a genuine issue of material fact exists regarding whether Norfolk received constitutionally adequate notice of the tax sale, the right of redemption, or the petition for tax deed, each of which is statutorily required. See generally S&C Fin. Grp., LLC v. Khan, 172 N.E.3d 280, 289 (Ind.Ct.App. 2021) (discussing the tax sale process and the three separate notice requirements under Ind. Code § 6-1.1-24-4 (notice of tax sale), I.C. § 61.1-25-4.5 (notice of right of redemption), and I.C. § 6-1.1-25-4.6 (notice of petition for tax deed)), trans. denied. Norfolk designated evidence showing that the notices were faulty - sent to the incorrect address, indeed the wrong state -and that the only notice Norfolk ever received - the notice of petition for tax deed - was received after the tax deed had been issued. Further, the notice of tax sale, sent by certified mail, was returned to sender as undeliverable, and DeCola's petition for issuance of the tax deed expressly indicated that "delivery was not made" of the notice of right of redemption. Appendix at 43.
[¶9] DeCola did not designate any contrary evidence to the trial court demonstrating that the notices were properly sent to Norfolk or present any argument that the notices satisfied due process. Instead, DeCola made the purely legal argument that Norfolk was precluded from defending itself in the quiet-title action on this basis because the tax deed was issued in a different court - LaPorte Superior Court 2 - and thus the trial court - LaPort Circuit Court - lacked jurisdiction to determine whether the tax deed was void for lack of notice.
[¶10] "'A tax deed is void if the former owner was not given constitutionally adequate notice of the tax sale proceedings,' including notice of the right of redemption . . . and notice of the petition for the issuance of a tax deed . . .." Marion Assets 2020, LLC v. Fiascone Fam. LP, 211 N.E.3d 1, 6 (Ind.Ct.App. 2023) (quoting Schaefer v. Kumar, 804 N.E.2d 184, 192 (Ind.Ct.App. 2004), trans. denied). Further, "[v]oid judgments can be attacked, directly or collaterally, at any time." Id. (quoting Anderson v. Wayne Post 64, Am. Legion Corp., 4 N.E.3d 1200, 1205 (Ind.Ct.App. 2014), trans. denied).
[¶11] I.C. § 6-1.1-24-4.7(f) provides: "The court that enters judgment under this section shall retain exclusive continuing supervisory jurisdiction over all matters and claims relating to the tax sale." Thus, because LaPorte Superior Court 2 retained jurisdiction, DeCola's quite-title action and Norfolk's subsequent challenge to the tax deed should have been in that court, not LaPorte Circuit Court. But it was DeCola's decision to file this action in a different court, and we conclude that the trial court properly rejected DeCola's attempt to use his improper forum choice as both a sword and a shield. By filing his quiet title action in LaPorte Circuit Court, DeCola waived his claim that that court lacked jurisdiction to consider defenses raised by Norfolk. See Kumar, 903 N.E.2d at 116 (finding jurisdictional argument based on I.C. § 6-1.1-24-4.7(f) to be a "claim of procedural error" subject to waiver); Bank One Tr. No. 386 v. Zem, Inc., 809 N.E.2d 873, 877 (Ind.Ct.App. 2004) (holding that where holder of tax deed filed quiet-title action in the wrong court, it could not later be heard to complain that the court lacked jurisdiction to rule on the summary judgment motions before it), trans. denied.
I.C. § 6-1.1-25-14 similarly provides that the holder of a tax deed "may initiate an action in the court that entered the judgment and order for sale to quiet the title to the property."
[¶12] Judgment affirmed.
Bailey, J. and Mathias, J., concur.