Indiana State Bd. of Tax Com'rs v. Holthouse Realty Corp.

• Decision Date: 12 August 1976
• Docket Number: No. 2--175A10,2--175A10
• Citation: 352 N.E.2d 535,170 Ind.App. 232
• Parties: INDIANA STATE BOARD OF TAX COMMISSIONERS, Defendant-Appellant, v. HOLTHOUSE REALTY CORPORATION et al., Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 535

352 N.E.2d 535

170 Ind.App. 232

INDIANA STATE BOARD OF TAX COMMISSIONERS, Defendant-Appellant, v. HOLTHOUSE REALTY CORPORATION et al., Plaintiffs-Appellees.

No. 2--175A10.

Court of Appeals of Indiana, First District.

Aug. 12, 1976.

Theo. L. Sendak, Atty. Gen., Alfred K. B. Tsang, Deputy Atty. Gen., Indianapolis, for defendant-appellant.

Vioni & Masson, Richmond, for plaintiffs-appellees.

LOWDERMILK, Judge.

STATEMENT OF THE CASE:

The instant case was transferred from the Second District to this office on July 21, 1976, in order to lessen the disparity in caseloads among the Districts.

Defendant-appellant Indiana State Board of Tax Commissioners (Board), appeals from a judgment which ordered it to reassess the property of Holthouse Realty Corporation, Holthouse Furniture Corporation, Bartel Realty Company, Inc., and Hoosier Mercantile Company, Inc., (taxpayers).

We affirm.

FACTS:

The facts necessary for our disposition of this appeal are as follows: On April 6, 1968, an explosion occurred in the City of Richmond which destroyed substantial amounts of property including that owned by taxpayers. On November 1, 1968 and October 23, 1969, taxpayers petitioned the Board for the reassessment of personal property and improvements made to real property owing to the loss which they had sustained because of the explosion pursuant to the provisions of IC 1971, 6--1--26--7, Ind.Ann.Stat. § 64--715 (Burns Supp. 1961).

This statute provides in relevant part as follows:

'In case of flood, fire or other disaster in which a substantial amount of real and personal property in any township has been partially or totally destroyed, the state board of tax commissioners, upon petition, shall cause a survey to be made and determine the area or areas in which the property has been partially or totally destroyed and order a reassessment of the real and personal property in such township either in whole or in part. . . .' (Citation omitted.)

On February 12, 1971, the Board issued an order approving certain petitions for reassessment, but denied those of taxpayers because they had been fully compensated for their losses by insurance proceeds.

On May 3, 1972, taxpayers filed their complaint seeking relief from the Board's judgment. Both parties moved thereafter for summary judgment.

On September 4, 1974, the trial court granted taxpayers' Motion for Summary Judgment and entered an order, the relevant portions of which are set forth infra:

'Entry

Findings of the Court: The issue for consideration before the court is whether or not defendants were required to reassess plaintiffs' property pursuant to IC 6--1--26--7 (formerly Burns Indiana Annotated Statute 64--715) effective the date of the Richmond, Indiana disaster. From the evidence before it, the court finds that plaintiffs' petitions for reassessment relief were properly filed and that the State Board of Tax Commissioners did cause a survey of the disaster area to be made which said area contained property of the plaintiffs.

The Court further finds that the State Board of Tax Commissioners thereafter failed to order reassessment of plaintiffs' property as required by the statute. The Board submits that it need not reassess property in such cases where relief to property owners is afforded by proceeds from property insurance. The court finds that I.C. 6--1--26--7 does not except property reassessment in disaster situations where the property is insured and if the legislature had intended the same it would have provided for it. It is only reasonable to assume that the Legislature when it passed the aforesaid act for reassessment relief in cases of disaster was cognizant that most prudent property owners had their property insured. There is no cogent reason to deny tax relief reassessment because one has taken purdent steps to insure his property from loss by disaster. The purpose of the statute is to afford tax relief and not to award compensatory relief to plaintiffs.

Based upon the above findings and conclusions the court finds that plaintiffs ought to be afforded reassessment relief with regard to their properties irrespective of compensation from third parties and that an order should issue requiring reassessment retroactive to the date of the Richmond, Indiana disaster, that being April 6, 1968. . . .

Judgment is therefore rendered in favor of plaintiffs on their Motion for Summary Judgment and against defendant on its Motion for Summary Judgment.

* * *'

ISSUES:

1. Did the trial court err in its finding that the Board failed to order reassessment of taxpayers' property?

2. Did the trial court err in making the assumption that prudent property owners have their property insured?

3. Did the trial court err in its statutory construction?

4. Did the trial court exceed the scope of judicial review?

DECISION:

ISSUE ONE:

The Board argues that the trial court erred in finding that it did not order a reassessment of taxpayers' property as mandated by IC 1971, 6--1--26--7, supra.

The record discloses that the trial court had before it the Board's Exhibit B which provided in relevant part the following:

'* * *

WHEREAS, a disaster, in the form of a gas explosion, did occur in Wayne County, Richmond, Indiana, on April 6, 1968, causing a substantial amount of real and personal property damage; and

WHEREAS, the State Board of Tax Commissioners did cause a survey to be made and has determined that real and personal property has been partially or totally destroyed by the gas explosion; and

WHEREAS, the Acts of 1961, Ch. 319, Sec. 705, as amended, does provide for a reassessment of the real and personal property in such county, either in whole or in part; and

WHEREAS, petitions for reassessment of real and personal property were filed with the State Board of Tax Commissioners with respect to said disaster, and WHEREAS, this Board has considered the statements and data contained in said petitions;

THEREFORE, IT IS HEREBY ORDERED that the following numbered petitions, which are attached hereto and made a part hereof, be approved for reassessment

13, 14 & 22

and that all other petitions be disapproved.

* * *'

The answers received by taxpayers to their interrogatories, and which the trial court had before it in ruling on the cross motions for summary judgment contained the following:

'8. State the dollar amount of reassessment to which plaintiffs would be entitled but for insurance coverage at the time of the disaster loss.

A. The information requested in interrogatory numbered 8 is not available to the State Board of Tax Commissioners. The assessment of property is made by local assessing officials, not the State Board of Tax Commissioners. Since the property was not ordered reassessed after the 1968 Richmond Disaster and was not, in fact reassessed, it is impossible to state the dollar amount of assessed value that the local officials might have placed on the plaintiffs' property.

* * *'

We find that there was substantial evidence to support the trial court's finding that the Board did not order the taxpayers' property reassessed as mandated by IC 1971, 6--1--26--7, supra.

ISSUE TWO:

The Board next contends that the trial court erred by making the assumption that prudent property owners have their property insured against loss.

In the record before us, we have been unable to find any evidence, and taxpayers in their brief cite us to none, which would support the finding of the trial court that prudent taxpayer carry insurance to protect them against losses incurred to their property. We are of the opinion that the above enumerated finding of the trial court was erroneous.

This conclusion, however, does not require us to reverse the judgment of the trial court. Ind. Rules of Procedure, Trial Rule 61, provides:

'No error . . . by the court . . . is ground for . . . vacating, modifying or otherwise disturbing a judgment or order or for reversal on appeal, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.'

Since the trial court had sufficient evidence to find that the Board failed to perform its statutory duty by not ordering the taxpayers' property reassessed, the error in including this unsupported and unnecessary finding in its judgment was harmless.

ISSUE THREE:

The Board contends that the trial court erred in its construction of IC 1971, 6--1--26--7, supra. Specifically, the Board argues that it was error for the trial court to find that our Legislature did not want to provide for a reduction of tax benefits upon the proper filing of a Petition For Reassessment, because petitioner had already received insurance proceeds for the damage sustained to its property.

The Board directs our attention to the Indiana Constitution, Art. 10, § 1, which provides in relevant part as follows:

'The General Assembly shall...