Beall v. Mooring Tax Asset Group, 45A05-0309-CV-450.

• Decision Date: 17 August 2004
• Docket Number: No. 45A05-0309-CV-450.,45A05-0309-CV-450.
• Citation: 813 N.E.2d 778
• Parties: Ryan A. BEALL, Appellant-Defendant, v. MOORING TAX ASSET GROUP, Appellee-Plaintiff.
• Court: Indiana Appellate Court

813 N.E.2d 778

Ryan A. BEALL, Appellant-Defendant, v. MOORING TAX ASSET GROUP, Appellee-Plaintiff.

No. 45A05-0309-CV-450.

Court of Appeals of Indiana.

August 17, 2004.

Ryan A. Beall, LaPorte, IN, Attorney for Appellant.

Kevin W. Marshall, Law Office of Smith and Marshall, Hammond, IN, Attorney for Appellee.

OPINION

SULLIVAN, Judge.

Appellant, Ryan Beall, appeals from the judgment awarded against him in an attorney malpractice claim brought by Appellee, Mooring Tax Asset Group ("Mooring"). Beall presents four issues for our review, which we restate as: (1) whether the evidence was sufficient to establish that an attorney-client relationship existed between himself and Mooring; (2) whether certain tax sale notices sent on behalf of Mooring were legally defective; (3) whether Mooring properly established that its damages were caused by Beall's negligence; and (4) whether the trial court properly denied Beall's motion to correct error.

We affirm.

The following are the facts most favorable to the trial court's judgment.¹ On September 18, 1997, Mooring purchased ten tax sale certificates for properties located in Lake County. On October 16, 1998, several notices of tax sale were sent to various parties regarding the ten properties purchased at the tax sale.² These notices purported to be prepared pursuant to Indiana Code § 6-1.1-25-4.5 ("Section 4.5"). Although Beall claims that these notices were drafted and sent by another party, the portions of the record he cites do not support this claim. Instead, the record reveals that all the notices contain the address of Beall's law office and are signed "Ryan A. Beall" as "Attorney for Purchaser."³ Separate notices were published in the Crown Point Star newspaper on October 15, October 22, and October 29, 1998 regarding the properties. These notices contain Beall's name and telephone number. On July 14, 1999, appearance forms containing Beall's name were filed along with verified petitions for tax deeds on the properties. The verified petitions for tax deed start with the line, "Comes now Petitioner, MOORING TAX ASSET GROUP XXX, LLC, by their attorney, Ryan A. Beall, who being first duly sworn upon his oath, petitions the Court and states as follows:...." See e.g., Plaintiff's Exhibit 1 at p. 9.⁴ On July 16, 1999, Beall attended a hearing on the petitions for tax deed. Tax deeds were issued for all ten properties.

In June of 2000, an attorney representing John Falcone contacted Beall. Mr. Falcone was the owner of one of the properties at issue, specifically that located at 217 Porter Street. He wished to purchase it back. Beall informed Mooring of this contact. Approximately thirty days after this, Mr. Falcone filed a motion to set aside the tax deed. According to one of Mooring's witnesses, the tax deed was set aside due to problems with the notice. The tax deeds to two other properties, 1916 Grant Street and 569 Burr Street, were also set aside because of notice problems.

On May 8, 2001, Mooring filed suit against Beall alleging negligence in his handling of the post-tax sale notices. Beall answered the complaint on May 18, 2001. On October 28, 2002, a jury trial was held. The jury found Mooring's damages to be $19,865.55 and found that Beall was 75% at fault. The trial court entered judgment in the amount of $14,899.16.

On November 27, 2002, Beall filed a motion to correct error claiming newly discovered evidence. Specifically, Beall claimed that on June 20, July 9, and October 11, 2002, Mooring had sold three of the properties at issue, including the Grant Street property, the tax deed to which Mooring's witness claimed had been set aside. Beall also claimed that several of the properties were sold at a tax sale in March 2000 because of Mooring's own failure to pay property taxes. Mooring's response to the motion to correct error did not deny Beall's claims that the properties had been sold, but instead noted the small amount of the jury award compared with what Mooring thought was a more proper amount of damages. Mooring's response also threatened that if the motion were granted, it would seek to have evidence regarding fifty more properties admitted. Following a hearing on Beall's motion, held on June 9, 2003, the trial court denied the motion on June 13, 2003.

The resolution of this case revolves in large part around Indiana's statutory scheme regarding tax sales. As explained by our Supreme Court in Tax Certificate Investments, Inc. v. Smethers, 714 N.E.2d 131, 133 (Ind.1999):

"A purchaser of Indiana real property that is sold for delinquent taxes initially receives a certificate of sale. Ind.Code Ann. § 6-1.1-24-9 (West Supp.1998). A one-year redemption period ensues. Ind.Code Ann. § 6-1.1-25-1 (West 1998); Ind.Code Ann. § 6-11-25-4 (West Supp.1998). If the owners fail to redeem the property during that year, a purchaser who has complied with the statutory requirements is entitled to a tax deed. Id. The property owner and any person with a `substantial property interest of public record' must each be given two notices. Ind.Code Ann. §§ 6-1.1-25-4.5, -4.6 (West Supp.1998).

The first notice announces the fact of the sale, the date the redemption period will expire, and the date on or after which a tax deed petition will be filed. Ind.Code Ann. § 6-1.1-25-4.5 (West Supp.1998). The second notice announces that the purchaser has petitioned for a tax deed. Ind.Code Ann. § 6-1.1-25-4.6 (West Supp.1998)."

The elements of attorney malpractice are: (1) employment of an attorney which creates the duty; (2) the failure of the attorney to exercise ordinary skill and knowledge (the breach of the duty); and (3) that such negligence was the proximate cause (4) of damage to the plaintiff. Rice v. Strunk, 670 N.E.2d 1280, 1283-84 (Ind.1996). Upon review of a jury verdict, we will neither reweigh the evidence nor judge the credibility of witnesses, but will examine the evidence most favorable to the appellee and all reasonable inferences to be drawn therefrom. Johnston v. Brown, 468 N.E.2d 597, 601 (Ind.Ct.App.1984).

Beall's first argument upon appeal is that there is insufficient evidence to establish the first element of the plaintiff's claim — that Mooring employed him. Beall's argument on this matter is brief and unpersuasive. He claims that Mooring hired another party, Great Lakes Certificate Management, and that Great Lakes in turn hired him only to appear at the hearing on the petitions for tax deed. Here, the alleged negligence relates to the timing of the Section 4.5 notices and the filing of the petitions for tax deed. Contrary to Beall's claims, the evidence favorable to the verdict reveals that he was responsible for both.

Beall's name, address, and telephone number appear on the Section 4.5 notices sent out. The Section 4.5 notices were also signed by Beall as "Attorney for Purchaser." It is indisputable that Mooring, not Great Lakes, was the purchaser of the properties in question. From this the jury could reasonably conclude that Beall sent out the Section 4.5 notices on behalf of Mooring. The jury was under no obligation to credit Beall's testimony to the contrary. The same is true with regard to the verified petitions for tax deed. As hereinbefore noted, they were brought in Mooring's name by Beall as their attorney and purported to be "sworn upon his [Beall's] oath." Plaintiff's Exhibit 1, supra. Yet the petitions were signed by an individual, Verna J. Avery, as agent for Mooring. Beall's signature as Notary Public appears as part of the Notary's jurat and avers that on "this 1st day of July, 1999, personally appeared, (sic) Verna J. Avery and acknowledged the execution of the foregoing instrument." Id. Beall appeared at the hearing on the petitions on Mooring's behalf on July 16, 1999. From these facts, notwithstanding some curious internal inconsistencies, the jury could reasonably have concluded that Beall prepared and filed the petitions for tax deed on Mooring's behalf. In short, the evidence is sufficient to show that Beall was employed by Mooring with regard to the Section 4.5 notices and petitions for tax deed.

Beall also argues that, regardless of whether he was employed by Mooring, the post-tax sale notices were not legally defective and therefore there could be no breach of the duty to exercise ordinary skill and knowledge. At issue here are the Section 4.5 notices. At the relevant time, Section 4.5 read as follows:

"(a) A purchaser or an assignee is entitled to a tax deed to the property that was sold only if:

(1) the redemption period specified in section 4 of this chapter has expired;

(2) the property has not been redeemed; and

(3) not less than one (1) month, if the property is subject to section 4(a)(2), 4(a)(3), 4(a)(4), or 4(a)(5) of this chapter,[⁵] or otherwise not less than three (3) months or more than five (5) months prior to the filing of the petition for a tax deed but not more than thirty (30) days after the expiration of the period of redemption specified in section 4(a)(1) of this chapter:

(A) the purchaser or assignee; or

(B) in a county having a consolidated city, a county having a population of more than two hundred thousand (200,000) but less than four hundred thousand (400,000),[⁶] or a county where the county auditor and county treasurer have an agreement under section 4.7 of this chapter, the county auditor;

gives notice of the sale, the date of expiration of the period of redemption, and the date on or after which a petition for the tax deed will be filed to the owner and any person with a substantial property interest of public record in the tract or real property.

However, in a county having a consolidated city, the county auditor shall give notice not less than one (1) month before the expiration of the period of redemption (as specified in section 4(a)(3) of this chapter)." Ind.Code § 6-1.1-25-4.5 (Burns Code Ed. Repl.1998) (emphasis supplied).

Thus, the applicable portion of Section 4.5 requires...