City of Gary v. Belovich

• Decision Date: 19 February 1987
• Docket Number: No. 45A03-8607-CV-199,45A03-8607-CV-199
• Citation: 504 N.E.2d 286
• Parties: The CITY OF GARY, Indiana and City of Gary, Indiana Fire Department, Appellants (Defendants Below), v. Joseph BELOVICH and Bernice Belovich, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 286

504 N.E.2d 286

The CITY OF GARY, Indiana and City of Gary, Indiana Fire Department, Appellants (Defendants Below), v. Joseph BELOVICH and Bernice Belovich, Appellees (Plaintiffs Below).

No. 45A03-8607-CV-199.

Court of Appeals of Indiana Third District.

Feb. 19, 1987.

Rehearing Denied March 25, 1987.

Alton L. Gill, Jr., Corp. Counsel, Tina L. Garrett, Asst. City Atty., Gary, for appellants.

James J. Nagy, Munster, for appellees.

HOFFMAN, Judge.

The City of Gary appeals the summary judgment entered in favor of Joseph and Bernice Belovich finding that title to certain land located in Lake County, Indiana should be quieted in the Beloviches. The essential facts are as follows.

The property in question is situated in the City of Gary and is legally described as:

"Lots 3, 4 and 5 in Block 7 in Gateway of the Dunes, in the City of Gary, as per plat thereof, recorded in Plat Book 20, page 4, in the Office of the Recorder of Lake County, Indiana."

and commonly known as 380 So. Grand Boulevard, Gary, Indiana.

The Beloviches acquired their interest in the real estate by a Commissioners' Deed executed by the Board of County Commissioners of Lake County, Indiana on December 10, 1984. The Commissioners Deed was recorded in the Lake County Recorder's Office on January 7, 1985 as Document Number 787148. The Board of County Commissioners' interest rested on a tax deed issued on September 24, 1984, after the record owners failed to pay the property taxes due on the land.

John F. Mravca and Judith Mary Ann Mravca were the record owners of the property at the time the Beloviches acquired and recorded the Commissioners' Deed. The Mravcas were initially parties to this action, but disclaimed any interest in the property, because they had sold the land to the City of Gary in 1970. The City, however, did not record its deed until May 23, 1985, more than four months after the Beloviches recorded their deed and more than two months after this action was initiated.

The record further reveals that the City of Gary's Fire Station No. 7 is located on the property. The fire station has been in service since 1974.

As restated, Gary raises three issues. These are:

(1) whether the Commissioners' Deed was properly admitted into evidence;

(2) whether the trial court erred in finding that a certificate of sale had been issued to Lake County at least one year prior to the date of the tax deed; and

(3) whether the tax deed is void because it supposedly implies that the land was sold for taxes which had not yet become delinquent.

By the first allegation of error the City questions the Commissioners' Deed's admission into evidence. The record reveals that the Beloviches initially introduced the Commissioners' Deed through their request for admissions. In the request the City was asked to admit the genuineness of the Commissioners' Deed. The City's response was:

"1. Defendants deny Plaintiffs' allegation one. All documents attached to Plaintiffs' request are photostatic copies of documents; the originals have not been seen by defendants."

The Beloviches filed a motion to compel directed at the City's responses to certain separately filed interrogatories and to the response to the request for admissions. After a hearing the trial court found "[t]he Plaintiffs entitled to relief as to Rhetorical Paragraph One of their Request for Admissions[.]" Accordingly the trial court held that the documents "must be deemed admitted."

In its motion to correct errors, and on appeal the City has abandoned its objection based on the photocopies. Instead, the City now argues that the trial court erred in admitting the documents, because they were not properly authenticated.

The documents submitted to the trial court were authenticated by a certificate signed by the Auditor of Lake County. The City asserts that this was insufficient and the documents could only have been authenticated by the County Recorder.

Initially, it is clear that the City has waived appellate review of its new argument. It is axiomatic that an issue cannot be raised for the first time in the motion to correct errors or on appeal. Allen v. Scherer (1983), Ind.App., 452 N.E.2d 1031. Ind. Rules of Procedure, Trial Rule 36(A) requires that a request for admission be specifically denied. Here the City denied the Beloviches' request solely on the grounds that the documents were photostatic copies, ¹ and the trial court properly rejected this denial. See, IND.CODE Sec. 34-1-17-7 (1982). It is true that IND.CODE Sec. 34-1-17-7 has a further requirement that copies be authenticated, but the City did not contest this issue in its denial.

Notwithstanding waiver, the City's argument alleging improper authentication is also incorrect. Ind. Rules of Procedure, Trial Rule 44(A) permits a copy of an official record to be proved by the attestation of the record's legal custodian. See also, IND.CODE Sec. 34-1-17-7.

Normally, as the City asserts, the County Recorder is the custodian for records of deeds. See e.g., IND.CODE Sec. 36-2-11-8 (1982). However IND.CODE Sec. 36-2-2-11 makes the County Auditor responsible for maintaining the records of the County Commissioners. The Commissioners' Deed in question here is a record of an action taken by the Lake County Board of Commissioners and therefore the County Auditor was also a proper official to authenticate the deed, and the trial court correctly found it admissible.

The City next asserts that the trial court erred by presuming that a certificate of sale had been issued to Lake County at least a year prior to the date of the tax deed. Issuance of a certificate of sale is one of the statutory steps in a tax sale, and so, for the sake of clarity, it is necessary to set out at least the pertinent parts of the statutory scheme for tax sales.

Property initially becomes eligible for tax sale when the taxes are delinquent for fifteen months or more. IND.CODE Sec. 6-1.1-24-1 (1982). If, after two years from the date that the property is first offered for sale, no legally sufficient bid is received, then the County acquires a lien on the property in an amount equal to the minimum sale price. IND.CODE Sec. 6-1.1-24-6. Immediately after the County acquires its lien the County Auditor issues a certificate of sale to the County. IND.CODE Sec. 6-1.1-24-9. The effect of the certificate of sale is to begin the running of the period of redemption. If a certificate of sale issued to a County is not redeemed within one year, then the County Auditor issues a tax deed to the County in exchange for the certificate of sale. IND.CODE Sec. 6-1.1-25-4(a) (1982).

When the Auditor executes a tax deed the certificate of sale is cancelled and placed on file. IND.CODE Sec. 6-1.1-25-4(b). The Auditor can, however, issue a tax deed without a certificate of sale, if he is satisfied that the certificate did exist. IND.CODE Sec. 6-1.1-25-4(a). Finally the tax deed itself is presumptive evidence of the regularity of all prior proceedings in the tax sale process. IND.CODE Sec. 6-1.1-25-4(d).

The City of Gary argues that the trial court erred in presuming that the certificate of sale had been issued at least one year prior to the date the tax deed was issued, because there was no evidence that the certificate had ever been issued. The City's argument is unfortunately misdirected.

As this scheme indicates, tax sales are entirely statutory. For the sale to be valid each step must be materially complied with. Allen v. Gilkison (1921), 76 Ind.App. 233, 132 N.E. 12. While tax sales are subject to close judicial scrutiny, this suspicion is balanced by recognition of the salutary purposes that tax sales serve. Thus the tax deed creates a presumption that the sale and all steps leading to the deed's issuance are proper. This presumption stands until the party assailing the validity of the sale comes forward with affirmative evidence in rebuttal. Peterson v. Warner (1985), Ind.App., 478 N.E.2d 692.

The trial court correctly presumed that the certificate of sale had been issued. Issuance of the certificate of sale is part of the process that culminates in the tax deed and IND.CODE Sec. 6-1.1-25-4(d) therefore creates the presumption that the certificate was issued. In order to overcome this presumption, the City was required to introduce affirmative evidence that the certificate was not issued.

The City is correct in its statement that there is no evidence in the record that the certificate was ever issued, but it is equally true that there is no evidence that the certificate was ever not issued. The City had the burden to come forward with this evidence and its failure leaves a void in the facts. "Courts cannot act upon the assumption that a state of facts exists which has not been proved[.]" Muncie Building Trades Council v. Umbarger (1938), 215 Ind. 13, 16, 17 N.E.2d 828, 829. The City made no attempt before summary judgment was granted to prove that the certificate had not been issued. The presumption therefore stood unrebutted and the trial court did not err.

The City of Gary's final issue regards the tax deed itself. The City contends that the sale is voidable, because the deed reveals that the land was sold for taxes that were...