Cooper v. County Bd. of Review of Grant County, No. 1170A183

Docket NºNo. 1
Citation150 Ind.App. 232, 276 N.E.2d 533
Case DateDecember 13, 1971
CourtCourt of Appeals of Indiana

Page 533

276 N.E.2d 533
150 Ind.App. 232
Thomas L. COOPER et al., Appellants (Plaintiffs below),
v.
COUNTY BOARD OF REVIEW OF GRANT COUNTY et al., Appellees
(Defendants below).
No. 1170A183.
Court of Appeals of Indiana, Division No. 1.
Dec. 13, 1971.

[150 Ind.App. 233]

Page 534

Max E. Hobbs, Fort Wayne, Alfred Hogston, Marion, for appellants.

Gene R. Johnson, Marion, Theodore L. Sendak, Atty. Gen., Scott Tower Miller, Walter E. Bravard, Jr., Joseph S. Van Bokkelen, Indianapolis, for appellees.

BUCHANAN, Judge.

STATEMENT OF THE CASE AND FACTS--This appeal concerns an action by taxpayers seeking to enjoin county and state officials from levying taxes based on an alleged invalid county-wide assessment.

Thomas L. Cooper and other taxpayers (Cooper) filed a Complaint for Permanent Injunction in Grant County on February 26, 1970, and after change of venue the suit was heard by the Miami Circuit Court.

The Complaint alleges that the reassessment of property in Grant County for the year 1969 is contrary to law and that unless relief is granted by the court the levy of an unjust and illegal tax will place a cloud upon the title of the real estate owned by Cooper, thereby causing irreparable injury. Such action, Cooper asserts, will deprive him and other taxpayers of their property without due process or equal protection of the law and will deny them a uniform and equal rate of taxation as guaranteed by the Constitutions of the United States and the State of Indiana.

In response to the Complaint, two Motions to Dismiss were filed.

[150 Ind.App. 234] The Defendant County Board of Review of Grant County first filed a Motion to Dismiss in two paragraphs, the first paragraph alleging that the trial court had no jurisdiction over the subject matter (Rule TR. 12(B)(1)), and the second paragraph alleging that the Complaint failed to state a claim upon which relief could be granted (Rule TR. 12(B)(6)).

The second Motion to Dismiss was filed by the defendant State Board of Tax Commissioners in one paragraph, alleging under Rule TR. 12(B)(1) that the court was without jurisdiction over the subject matter.

These two defendants are hereinafter referred to as 'the Boards.'

Accompanying the Motions to Dismiss, the Board also filed several affidavits

Page 535

which showed: that taxes in the amount of $250,000 had already been collected in Grant County; that the Grant County Board of Review had completed all 1969 review procedures and had adjourned, after duly processing appeals filed in the names of James Fall, Ralph V. Clester, and Fred Inskeep (all of whom are parties to this appeal), but that no appeal had been filed in the name of Thomas L. Cooper; that of the named plaintiffs, only Fred Inskeep filed for an appeal to the State Board of Tax Commissioners; and further, that only 65 appeals from the entire statutory reassessment in Grant County were filed with the State Board of Tax Commissioners.

Following the submission of the Motions to Dismiss, briefs were filed and oral arguments held. The court granted both Motions to Dismiss on June 22, 1970 in these words:

'Motions to Dismiss, as filed by the Defendants having been heretofore argued and briefed, and having been under advisement, and the Court now being sufficiently and properly advised in the premises, now sustains the Defendants' Motions to Dismiss. Cause dismissed at Plaintiff's costs. Cause dismissed. Clerk to notify all attorneys.' (Emphasis supplied.)

[150 Ind.App. 235] Cooper then timely filed his Motion to Correct Errors.

ISSUES--Cooper maintains that the trial court committed an error of law in granting the Motions to Dismiss and that the issue is whether or not his Complaint is sufficient to state a claim upon which relief could be granted. The Boards take the position that the issue is whether or not the court had subject-matter jurisdition.

This presents us with a threshold question as to the exact issue to be resolved. We agree with the Boards, for reasons which will hereinafter appear, that the issue is whether or not the court had subject-matter jurisdiction. Our decision therefore will be in two parts:

ONE: A determination of the issue for decision.

TWO: Whether the trial court had jurisdiction over the subject matter of the Complaint?

No relevant arguments were made by either party concerning Part One.

As to Part Two, Cooper argues that:

(1) he has no adequate remedy at law and is entitled to equitable relief since the administrative remedies do not provide for a class attack upon the total reassessment; that only by resort to equity will he have available a prompt efficient and convenient remedy.

(2) only by invoking equity will a multiplicity of suits be avoided;

(3) there is a distinction between the right of an individual taxpayer to seek the aid of the courts to set aside an alleged illegal tax and the right of a number of taxpayers of a district or community to join in a suit on behalf of themselves and all others similarly situated in their roles as taxpayers to protect their financial interest in the taxing district. This damage is sustained by the public generally and for this kind of damage there is no legal or administrative remedy.

[150 Ind.App. 236] The Boards' position is that:

(1) equitable relief is not necessary because there is no danger of a multiplicity of actions;

(2) there exist adequate procedures for seeking relief from the alleged erroneous reassessment;

(3) there is provided by statute a procedure for review of the action of administrative agencies and a judicial remedy and therefore plaintiff is excluded from any equitable procedure for questioning the assessment.

Page 536

(4) the failure to comply with the existing procedural requirements is jurisdictional.

DECISION

PART ONE: The issue for determination is whether the trial court had jurisdiction of the subject matter and not whether the complaint stated a claim for relief.

Because a Rule TR. 12(B)(1) Motion is a relatively new animal in our legal menagerie, a brief discussion of its proper use is pertinent.

Prior to the adoption of the Indiana Rules of Trial Procedure, effective January 1, 1970, the defense of lack of jurisdiction of the subject matter could be raised by demurrer, plea in abatement, or by motion to dismiss, depending upon the circumstances. Rule TR. 12(B)(1) simplified raising this defense by providing for either a consolidated motion before answer or by the answer itself. Harvey's Indiana Practice, Vol. 1, pp. 604--608.

As under the old rules of pleading, this defense is still available at any time. It cannot be waived and may be raised by the parties or the court at any point during the action including appeal. Wedmore v. State, (1954) 233 Ind. 545, 122 N.E.2d 1; McCoy v. Able, (1891) 131 Ind. 417, 30 N.E. 528, 31 N.E. 453.

Since Rule TR. 12 is substantially a carbon copy of Federal [150 Ind.App. 237] Rule 12, certain federal procedures apply to a Rule TR. 12(B)(1) motion, others will not.

In the federal courts jurisdiction of the subject matter must be affirmatively pleaded, and in the absence of proper jurisdictional averments the complaint may be dismissed. (See Miller v. Brown Ship-Building Co., (1948) (C.A. 5) 165 F.2d 956.) Specific jurisdictional allegations are usually not necessary under our practice since most courts of this state possess general jurisdiction. Loeb v. Mathis, (1871) 37 Ind. 306. Further, where a question of failure to pursue statutory remedies is concerned, it is not the failure to allege which preempts the jurisdiction of the court, but rather it is the 'failure to comply with the statute (that) is jurisdictional.' Monon R.R. Co. v. Citizens of Sherwood Forest Addition, Marion County, (1970) Ind.App., 257 N.E.2d 846; Ballman v. Duffecy, (1952) 230 Ind. 220, 102 N.E.2d 646.

Federal case law allows affidavits to be filed by the parties where a motion to dismiss for want of subject-matter jurisdiction is before the court. In considering such a motion, unlike a motion to dismiss for failure to state a claim or motion for summary judgment, the court may weigh the evidence before it to determine the existence or nonexistence of the requisite facts. (See Ramirez and Feraud Chili Co. v. Las Palmas Food Co., (1956) (D.C.Cal.) 146 F.Supp. 594, aff'd 245 F.2d 874, cert. denied 355 U.S. 927, 78 S.Ct. 384, 2 L.Ed.2d 357. 1 We agree that use of affidavits for this...

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41 practice notes
  • Harp v. Indiana Dept. of Highways, No. 41A04-9012-CV-570
    • United States
    • Indiana Court of Appeals of Indiana
    • January 23, 1992
    ...v. Clapp (1970), 255 Ind. 97, 262 N.E.2d 630 (overruled in part by State ex rel. Young, supra.); Cooper v. County Bd. of Review (1971), 150 Ind.App. 232, 237, 276 N.E.2d 533, 536 (citing Monon R.R. Co. v. Citizens of Sherwood Forest Addition (1970), 146 Ind.App. 620, 257 N.E.2d 846; Ballman......
  • Associates Inv. Co. v. Claeys, No. 71A04-8804-CV-131
    • United States
    • Indiana Court of Appeals of Indiana
    • February 8, 1989
    ...Board of Tax Commissioners v. Oliverius (1973), 156 Ind.App. 46, 294 N.E.2d646; Cooper v. County Board of Review of Grant County (1971), 150 Ind.App. 232, 276 N.E.2d 533; Public Service Commission of City of Indianapolis (1956), 235 Ind. 70, 131 N.E.2d 308; Decatur County REMC v. Public Ser......
  • Indiana Waste Systems, Inc. v. Board of Com'rs of Howard County, No. 2-277A58
    • United States
    • Indiana Court of Appeals of Indiana
    • April 26, 1979
    ...Corp. v. Public Service Co. (1971), 150 Ind.App. 193, 275 N.E.2d 857; Cooper v. County Bd. of Page 55 Review of Grant County (1971), 150 Ind.App. 232, 276 N.E.2d 533. See Paynter v. Marion County Superior Court, Room No. 5 (1976), 264 Ind. 345, 344 N.E.2d 846; Brutus v. Wright (1975), 163 I......
  • Suyemasa v. Myers, No. 1-180
    • United States
    • Indiana Court of Appeals of Indiana
    • May 28, 1981
    ...706; Jurko v. Jobs Europe Agency, (1975) 43 Ohio App.2d 79, 334 N.E.2d 478; Cf., Cooper v. County Board of Review of Grant Co., (1971) 150 Ind.App. 232, 276 N.E.2d 533. The trial court must then determine what acts the defendant did and whether such acts are sufficient to render him amenabl......
  • Request a trial to view additional results
41 cases
  • Harp v. Indiana Dept. of Highways, No. 41A04-9012-CV-570
    • United States
    • Indiana Court of Appeals of Indiana
    • January 23, 1992
    ...v. Clapp (1970), 255 Ind. 97, 262 N.E.2d 630 (overruled in part by State ex rel. Young, supra.); Cooper v. County Bd. of Review (1971), 150 Ind.App. 232, 237, 276 N.E.2d 533, 536 (citing Monon R.R. Co. v. Citizens of Sherwood Forest Addition (1970), 146 Ind.App. 620, 257 N.E.2d 846; Ballman......
  • Associates Inv. Co. v. Claeys, No. 71A04-8804-CV-131
    • United States
    • Indiana Court of Appeals of Indiana
    • February 8, 1989
    ...Board of Tax Commissioners v. Oliverius (1973), 156 Ind.App. 46, 294 N.E.2d646; Cooper v. County Board of Review of Grant County (1971), 150 Ind.App. 232, 276 N.E.2d 533; Public Service Commission of City of Indianapolis (1956), 235 Ind. 70, 131 N.E.2d 308; Decatur County REMC v. Public Ser......
  • Indiana Waste Systems, Inc. v. Board of Com'rs of Howard County, No. 2-277A58
    • United States
    • Indiana Court of Appeals of Indiana
    • April 26, 1979
    ...Corp. v. Public Service Co. (1971), 150 Ind.App. 193, 275 N.E.2d 857; Cooper v. County Bd. of Page 55 Review of Grant County (1971), 150 Ind.App. 232, 276 N.E.2d 533. See Paynter v. Marion County Superior Court, Room No. 5 (1976), 264 Ind. 345, 344 N.E.2d 846; Brutus v. Wright (1975), 163 I......
  • Suyemasa v. Myers, No. 1-180
    • United States
    • Indiana Court of Appeals of Indiana
    • May 28, 1981
    ...706; Jurko v. Jobs Europe Agency, (1975) 43 Ohio App.2d 79, 334 N.E.2d 478; Cf., Cooper v. County Board of Review of Grant Co., (1971) 150 Ind.App. 232, 276 N.E.2d 533. The trial court must then determine what acts the defendant did and whether such acts are sufficient to render him amenabl......
  • Request a trial to view additional results

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