Hurt v. Polak

• Citation: 397 N.E.2d 1051
• Decision Date: 18 December 1979
• Docket Number: No. 1-678A170,1-678A170
• Parties: Mary G. HURT, as Auditor of Knox County, Indiana, Respondent-Appellant, v. Betty K. POLAK, Relator-Appellee, v. Oliver J. RUSSELL, and Mary L. Russell, Third Party Defendants-Appellees.
• Court: Court of Appeals of Indiana

Page 1051

397 N.E.2d 1051

Mary G. HURT, as Auditor of Knox County, Indiana, Respondent-Appellant, v. Betty K. POLAK, Relator-Appellee, v. Oliver J. RUSSELL, and Mary L. Russell, Third Party

Defendants-Appellees.

No. 1-678A170.

Court of Appeals of Indiana, First District.

Dec. 18, 1979.

Rehearing Denied Jan. 22, 1980.

Robert S. McCormick, Vincennes, for respondent-appellant.

John R. Carr, III, Buschmann, Carr & Schabel, Indianapolis, for Betty K. Polak, Oliver J. Russell and Mary L. Russell.

NEAL, Judge.

Respondent-appellant Mary G. Hurt, as Auditor of Knox County (Auditor), appeals a judgment of the Daviess Circuit Court, granting relator-appellee Betty K. Polak (Taxpayer) a refund for Taxpayer's overpayment of 1970, 1971 and 1972 property taxes and ordering Knox County tax officials to record in all appropriate records the assessed valuation of Taxpayer's property as ordered by the State Board of Tax Commissioners (State Board) on October 24, 1973. ¹

Auditor raises four issues for review:

1) Whether the trial court abused its discretion in overruling her motion to dismiss Taxpayer's complaint for failure to prosecute under Ind.Rules of Procedure, Trial Rule 41(E);

2) Whether the trial court abused its discretion in overruling her motion for default judgment on her cross-complaint under T.R. 55;

3) Whether the trial court erred in upholding the authority of the State Board to issue its October 24, 1973 final determinations of the 1970 and 1971 assessments of Taxpayer's property; and

4) Whether the trial court erred in excluding from the evidence the contents of an official file of the State Board.

We affirm.

I.

Taxpayer filed her amended complaint on January 19, 1976, and on February 14, 1977, the trial court, Sua sponte, ordered a March 17, 1977 hearing on whether the cause should be dismissed for failure to prosecute. On March 7, on motion of Taxpayer, the cause was set for trial on July 27. On March 16, Auditor filed her T.R. 41(E) motion which was properly overruled because Auditor moved to dismiss the cause After Taxpayer filed her request for a trial setting, thus resuming prosecution. Auditor thereby failed to meet the requirements of T.R. 41(E). State v. McClaine, (1973) 261 Ind. 60, 300 N.E.2d 342.

II.

On February 4, 1976, Auditor filed a cross-complaint which Taxpayer did not answer until March 17, 1977, one day after Auditor filed a motion for default judgment on the cross-complaint. When a party fails to file a timely answer and answers only after the filing of a motion for default judgment, the trial court remains vested with power to exercise discretion, balancing the policies of speedy determination of actions and avoidance of delay against the policy favoring resolution of causes on their merits. Snyder v. Tell City Clinic, (1979) Ind.App., 391 N.E.2d 623. In order for this court to find an abuse of discretion or reversible error by the trial court, it is first necessary that prejudice be shown by the appellant. Wells v. Gibson Coal Co., (1976) Ind.App., 352 N.E.2d 838.

Auditor has failed to carry this burden because she failed to allege and argue, let alone prove, any prejudice to her as a result of the trial court's overruling of her motion.

III.

Auditor argues that the trial court erred in upholding the validity of the State Board's October 24, 1973 final determination of the 1970 and 1971 assessed valuation of Taxpayer's property. The court's findings and judgment, in part, are as follows:

"The court . . . finds that while the taxpayer failed to file a petition for review of assessment with the County Review Board within the time prescribed by statute, the notice issued by the County Review Board denying the review led the taxpayer to believe that he had a right to appeal and, in fact specifically stated that he had a right of appeal to the State Board of Tax Commissioners and therefore must be construed against the tax authority, and further finds that from and after that date the taxpayer complied with all statutes pertaining to his cause.

The Court further finds that the order of the State Tax Board dated October 24, 1973 was and is valid order."

On appeal from a trial before the court without a jury, a reviewing court will not disturb the judgment of the trial court unless such is clearly erroneous. T.R. 52(A). The judgment of the trial court must be upheld if it can be sustained on any legal theory which the evidence supports. Tarrant v. Self, (1979) Ind.App., 387 N.E.2d 1349.

In the case at bar, Taxpayer is the lessee of a tract of land upon which is built a shopping center. Taxpayer disputed through administrative appeals procedures both the 1970 and 1971 assessment of the property, which appeals eventually resulted in the October 24, 1973 orders by the State Board entitled "Corrected Order of Final Assessment Determination" for 1970, and "Final Assessment Determination" for 1971. In February, 1974, Taxpayer filed a claim pursuant to appropriate statute for refund of property taxes paid in 1971, 1972 and 1973 over and above those payable on the State Board's final assessments. The tax duplicates were not changed to reflect the State Board's final assessments and Taxpayer's refund claim was not processed. Taxpayer filed suit seeking, Inter alia, to recover the overpayments of taxes paid pursuant to the original assessments. Auditor defended against Taxpayer's claim on the basis that the final determinations of the State Board on October 24, 1973, were void in that the State Board lacked authority to act on Taxpayer's administrative appeals because Taxpayer's initial petition to the county review board for review of the township assessor's 1970 valuation was not filed within the 30-day period of IC 1971, 6-1-31-1 (Burns Code Ed.), since repealed, which reads, in part, as follows:

"Any person shall have a right to a review by the county board of review of any county or township official's action upon the assessment of such person's property, if such action is of a type requiring the giving of notice to the taxpayer under the provisions of this act (6-1-20-1 6-1-39-13). Such review may be had by filing a petition with the county auditor of the county in which the action is taken within thirty (30) days of the giving of the required notice . . . "

We affirm the trial court's judgment on the basis that Auditor did not have available to her as a defense an attack on the validity of the State Board's action.

In Board of Commissioners of Pulaski County v. Senn, (1888) 117 Ind. 410, 20 N.E. 276, after the township assessor and the county board of equalization had fixed the valuation of Senn's property, the county auditor, on his own, increased it and caused the county treasurer to collect taxes on the basis of the increased valuation. Our Supreme Court affirmed a trial court action in favor of the taxpayer and said, at 412-13, 20 N.E. at 277:

"There is no claim that the auditor had any color of authority to add to the valuation put upon the real estate . . . by the assessor and board of equalization. His unauthorized interference with the assessment, as lawfully made, after the board of equalization had adjourned, was, therefore, not only unlawful and irregular, but it was wrongful within the meaning of the statute (which made it the duty of the board of commissioners to refund taxes wrongfully assessed), as it has been construed by the decisions of this court. (Citations omitted.)

When the assessor, and after him the board of equalization, had adjusted the fair cash valuation of the lands, the judgment thus arrived at was conclusive upon the county auditor, and all others, and could only be changed by some proceeding expressly authorized and prescribed by law.

In the absence of any authority vested in the auditor to raise the valuation, it became his duty to carry the amounts thus assessed against each tract of land on to the tax duplicate, without alteration or change. . . .

At the trial the appellant offered evidence tending to show that the...