Irwin Mortg. Corp. v. MARION CTY. TREASURER

• Decision Date: 18 October 2004
• Docket Number: No. 49A04-0310-CV-536.,49A04-0310-CV-536.
• Citation: 816 N.E.2d 439
• Parties: IRWIN MORTGAGE CORPORATION, f/k/a Inland Mortgage Corporation, Appellant-Plaintiff, v. MARION COUNTY TREASURER, Marion County Auditor, PTABOA f/k/a Marion County Board of Review, Appellees-Defendants.
• Court: Indiana Appellate Court

816 N.E.2d 439

IRWIN MORTGAGE CORPORATION, f/k/a Inland Mortgage Corporation, Appellant-Plaintiff, v. MARION COUNTY TREASURER, Marion County Auditor, PTABOA f/k/a Marion County Board of Review, Appellees-Defendants.

No. 49A04-0310-CV-536.

Court of Appeals of Indiana.

October 18, 2004.

Dale W. Eikenberry, Maureen E. Ward, Wooden & McLaughlin, LLP, Indianapolis, IN, Attorneys for Appellant.

Anthony Overholt, Shelese Woods, Indianapolis, IN, Attorneys for Appellees.

OPINION

FRIEDLANDER, Judge.

Irwin Mortgage Corporation, f/k/a Inland Mortgage Corporation (Irwin), appeals the trial court's dismissal of its complaint against the Marion County Treasurer, the Marion County Auditor, and the Property Tax Assessment Board of Appeals (PTABOA) f/k/a Marion County Board of Review (collectively, Marion County). Irwin presents several issues for review that we consolidate, and restate as:

1. Does the two-year statute of limitations of Ind.Code Ann. § 34-11-2-4 bar Irwin's federal constitutional claims pursuant to 42 U.S.C. § 1983 (West 1998) and Irwin's state constitutional claims?

2. Do the notice requirements of the Indiana Tort Claims Act bar Irwin's state constitutional claims?

3. Do the notice requirements of the Indiana Tort Claims Act bar Irwin's federal constitutional claims pursuant to 42 U.S.C. § 1983?

We affirm in part, reverse in part, and remand.¹

Irwin is a mortgage company that escrows its customers' funds for property tax payments. Irwin owed the Marion County Treasurer (Treasurer) a property tax installment payment on May 12, 1997. Irwin prepared the checks and bundled the necessary information for delivery to the Treasurer on May 12, 1997; however, it did not timely deliver the payment because the employee responsible for making the payment was not at work on May 12.

On May 13, 1997, Irwin hand-delivered the tax payment to the Treasurer and was advised that the tax payment was delinquent. As a result, pursuant to Ind.Code Ann. § 6-1.1-37-10(a) (West, PREMISE through 2003 1st Regular Sess.),² the Treasurer imposed a penalty equal to ten percent of the amount of the delinquent tax payment. At the time, it was not possible to determine the exact amount of the penalty due because such a determination required the posting and crediting of other tax payments. On July 8, 1997, the Treasurer determined the penalty amount to be $334,150.66, Irwin paid the penalty July 14, 1997, and the Treasurer showed receipt of payment as July 18, 1997.

On January 5, 1998, Irwin filed a claim with the Marion County Auditor (Auditor), seeking a refund of the penalty. In its claim, Irwin asserted that I.C. § 6-1.1-37-10(a) violated Article 1, § 16 of the Indiana Constitution and the Eighth Amendment of the United States Constitution. In particular, Irwin claimed the penalty was excessive and disproportionate to the nature of the offense, was applied in a disproportionate manner among delinquent taxpayers, and improperly distinguished taxpayers by the method the taxpayer used to deliver tax payments. Irwin's federal claims that the penalty was excessive were raised pursuant to 42 U.S.C. § 1983. The Auditor denied Irwin's claims on January 23, 1998, and Irwin appealed to the Indiana Board of Tax Review (State Board), which conducted a hearing on November 16, 1999. On January 28, 2002, the State Board issued a final determination finding it did not have the authority to decide the issues in Irwin's appeal.³ Irwin appealed the State Board's determination to the Indiana Tax Court (Tax Court), which dismissed Irwin's appeal on September 30, 2002, finding that the State Board "did not have authority to decide anything regarding the appropriateness of a penalty for late payment of taxes and consequently neither does this Court." Appellant's Appendix at 57. Irwin filed a Petition for Review with our supreme court on October 29, 2002, which was denied January 22, 2003.

Thereafter, Irwin filed a complaint in a Marion County court of general jurisdiction on March 20, 2003, against the State Board, the Treasurer, the Auditor, the PTABOA, and the Washington Township Assessor (Assessor). In its complaint, Irwin alleged the same constitutional infirmities with I.C. § 6-1.1-37-10(a) that it had previously asserted in its refund claim filed with the Auditor. On June 6, 2003, the Treasurer, the Auditor, the PTABOA, and the Assessor collectively moved to dismiss Irwin's Complaint asserting that Irwin's claims: (1) were barred by Irwin's failure to file notice under the Indiana Tort Claims Act (ITCA); (2) were time-barred due to the applicable statute of limitations; and (3) contained no allegations against the Assessor. The State Board filed a separate motion to dismiss on June 12, 2003, asserting identical ITCA and statute of limitations grounds, as well as claiming that the State Board "had no authority to apply, implement, enforce, or otherwise consider the provisions set forth at Ind.Code § 6-1.1-37-10." Appellant's Appendix at 37. The trial court dismissed Irwin's Complaint as to all parties on October 2, 2003, without specifying the grounds for dismissal.

On appeal, Irwin claims that neither a statute of limitations nor the ITCA bars its claims against Marion County.⁴ In particular, Irwin asserts that the Journey's Account statute saves its federal and state claims from the two-year statute of limitations of I.C. § 34-11-2-4. Further, Irwin argues the ITCA is inapplicable, but, regardless, Irwin substantially complied with the notice requirements and its federal claims are not subject to them.

As an initial matter, while Irwin appeals from the grant of a motion to dismiss, because Marion County designated evidence with its motion, the proper standard of review is that for a grant of summary judgment. Dempsey v. Carter, 797 N.E.2d 268 (Ind.Ct.App.2003). When reviewing the grant or denial of summary judgment, we use the same standard used by the trial court. Ebersol v. Mishler, 775 N.E.2d 373 (Ind.Ct.App.2002). Summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. If the trial court's entry of summary judgment can be sustained on any theory or basis in the record, we must affirm. Dorman v. Osmose, Inc., 782 N.E.2d 463 (Ind.Ct.App.2003).

1.

Irwin asserts that the two-year statute of limitations contained within I.C. § 34-11-2-4 does not bar its federal and state claims seeking refund of the alleged illegal tax penalty. A statute of limitations defense may properly be raised on a motion for summary judgment. Schnell v. Hayes, 710 N.E.2d 208 (Ind.Ct.App.1999). "When the undisputed facts demonstrate that the complaint was filed after the running of the applicable statute of limitations, the trial court must enter judgment for the defendant." Id. at 210.

The statute of limitations for a § 1983 action is governed by the personal injury statute of the state where the alleged injury occurred. Parks v. Madison County, 783 N.E.2d 711 (Ind.Ct.App.2002) (citing Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985)). In Indiana, that period of limitations is two years. Parks v. Madison County, 783 N.E.2d 711 (citing I.C. § 34-11-2-4). Irwin does not deny that the two-year limitations period of I.C. § 34-11-2-4 applies to its § 1983 claims, rather it argues that Indiana's Journey's Account statute saves them.⁵

The Journey's Account statute states, in relevant part:

(a) This section applies if a plaintiff commences an action and the plaintiff fails in the action from any cause except:

(1) negligence in the prosecution of the action;

(2) the action abates or is defeated by the death of a party; or

(3) a judgment is arrested or reversed on appeal.

(b) If subsection (a) applies, a new action may be brought not later than the later of:

(1) three (3) years after the date of the determination under subsection (a); or

(2) the last date an action could have been commenced under the statute of limitations governing the original action;

and be considered a continuation of the original action commenced by the plaintiff.

I.C. § 34-11-8-1 (West 1998). "The Journey's Account Statute, when applicable, serves to resuscitate actions that have otherwise expired under a statute of limitations." Parks v. Madison County, 783 N.E.2d at 720. Further, the statute:

[G]enerally permits a party to refile an action that has been dismissed on technical grounds. See Vesolowski v. Repay, 520 N.E.2d 433, 435 (Ind.1988). The statute allows a party to bring a "new action" as a "continuation of the original action," if the party brings the new action within three years after the original action failed. I.C. § 34-1-2-8. Typically, the statute saves "an action filed in the wrong court by allowing the plaintiff enough time to refile the same claim in the correct forum." Cox v. Amer. Aggregates Corp., 684 N.E.2d 193, 195 (Ind.1997). For instance, if a party files an action in one state where it is dismissed for lack of personal jurisdiction, the party may refile in another state despite the "intervening running of the statute of limitations." Id.

Allen v. Great Am. Reserve Ins. Co., 739 N.E.2d 1080, 1083-84 (Ind.Ct.App.2000), aff'd in relevant part, 766 N.E.2d 1157 (Ind.2002).

In order to bring a new action in reliance on the statute, the new action must be a continuation of the original action. See, e.g., McGill v. Ling, 801 N.E.2d 678 (Ind.Ct.App.2004) (holding the statute did not save a medical malpractice complaint filed in state court as the new action was not a continuation of the original action filed in federal court alleging negligence, gross negligence and civil rights violations). The statute's purpose is to ensure that a diligent suitor retains the right to a hearing in court until receiving a judgment on the merits. McGill v. Ling, 801 N.E.2d 678 (citing Vesolowski v. Repay, 520 N.E.2d 433). Moreover, our supreme court has...