Lenard v. Adams, 3-1280A374

• Citation: 425 N.E.2d 211
• Decision Date: 31 August 1981
• Docket Number: No. 3-1280A374,3-1280A374
• Parties: Rosemary LENARD, Appellant, v. Richard ADAMS and H. B. Ike Moyer, d/b/a A & M Properties, and Charles R. Miller, Auditor of Elkhart County and Woody L. Caton, Treasurer of Elkhart County, Indiana, Appellees.
• Court: Court of Appeals of Indiana

Page 211

425 N.E.2d 211

Rosemary LENARD, Appellant, v. Richard ADAMS and H. B. Ike Moyer, d/b/a A & M Properties, and Charles R. Miller, Auditor of Elkhart County and Woody L. Caton, Treasurer of Elkhart

County, Indiana, Appellees.

No. 3-1280A374.

Court of Appeals of Indiana, Third District.

Aug. 31, 1981.

Richard H. Sproull, Elkhart, for appellant.

Robert W. Miller, Elkhart, for appellee, A & M Properties.

STATON, Judge.

Rosemary Lenard's real property was sold at a tax sale to A & M Properties. ¹ She brought this action to have the tax deed declared void. ² A & M Properties filed a counterclaim to quiet title and a motion for summary judgment. ³ The trial court granted A & M's motion for summary judgment; Rosemary Lenard appeals. The only issue presented for our review is whether the trial court erred in granting A & M's motion for summary judgment. ⁴

We affirm.

I. Summary Judgment

Lenard challenges the trial court's granting of A & M's motion for summary judgment by alleging that material issues of fact existed. In Poxon v. General Motors Acceptance Corp. (1980), Ind.App., 407 N.E.2d 1181, this Court stated:

"A summary judgment is a procedure for applying the law to the facts, when there is no factual controversy. It is not a procedure for trying the facts and for determining the preponderance of the evidence. Krueger et al. v. Bailey et al. (1980), Ind.App., 406 N.E.2d 665. (See Ind. Rules of Procedure, Trial Rule 56(C)). The party seeking a summary judgment has the burden of establishing that there are no genuine issues as to any material fact. Any doubt must be resolved against the movant. Ang v. Hospital Corp. of America (1979), Ind.App., 395 N.E.2d 441. Even if the facts are not in dispute, a summary judgment is not appropriate when the information before the court discloses a good faith dispute as to the inferences to be drawn from these facts. Krueger et al. v. Bailey et al., supra; Hale v. Peabody Coal Company (1976) (168 Ind.App. 336), 343 N.E.2d 316.

"In determining whether to grant a motion for summary judgment, the court considers the facts set forth in the nonmoving party's affidavits as true and construes the products of discovery liberally in his favor. Ang v. Hospital Corp. of America, supra. Pleadings, evidence, and inferences are to be viewed in a light most favorable to the party against whom the summary judgment is sought. Randolph v. Wolff (1978), Ind.App., 374 N.E.2d 533. Only if no issue as to a material fact is raised, may the court grant a summary judgment. To defeat such a motion, the opposing party only needs to show that a material fact is genuinely in issue. Brandon v. State (1976), 264 Ind. 177, 340 N.E.2d 756."

Id. at 1183-84.

If Lenard could have presented evidence establishing at least one subsection of IC 6-1.1-25-16, she would have presented a challenge to the summary judgment granted by the trial court. Lenard only pursued subsection seven which provides that the tax deed may be defeated by proving:

"(7) if the original owner is claiming adversely to the deed, that the notice required by IC 1971, 6-1.1-24-4 and section 6 of this chapter were not given in the manner prescribed in those sections."

Lenard further limited her attack by challenging only the "notice" requirement found in IC 6-1.1-24-4, which provides:

"(a) In addition to the notice required by section 3 of this chapter, the county auditor shall send a notice of the sale by certified mail to the owner or owners of the real property at their last known address. The county auditor shall prepare the notice in the form prescribed by the state board of accounts, and he shall mail the notice at least twenty-one (21) days before the day of sale.

"(b) On or before the day of sale, the county auditor shall certify, on the tax sale record required by IC 1971, 6-1.1-25-8, that notice was given in the manner prescribed in this section."

Lenard alleges specifically that there is no proof in the record that notice was sent to her "last known address," or that the county auditor certified "that notice was given in the manner prescribed in this section."

The parties to this appeal agree that the tax deed was in fact issued to A & M. IC 6-1.1-25-4(d) provides in part that:

"The deed is prima facie evidence of:

"(1) the regularity of the sale of the real property described in the deed;

"(2) the regularity of all proper proceedings; and

"(3) valid title in fee simple in the grantee of the deed."

Prima facie evidence is sufficient to establish a given fact and remains sufficient if uncontradicted. Johnson v. State (1972), 258 Ind. 648, 283 N.E.2d 532; Rene's Restaurant Corp. v. Fro-Du-Co-Corp. (1965), 137 Ind.App. 559, 210 N.E.2d 385.

Additionally, A & M attached a certified copy of the tax sale certificate to its motion for summary judgment. IC 6-1.1-24-11(a) provides that:

"A certificate of sale issued under section 9 of this chapter is presumptive evidence of:

"(1) the truth of the statements contained in the certificate;

"(2) the interest of the purchaser in the real property described in the certificate;

"(3) the regularity and validity of all proceedings related to the taxes or special assessments for which the real property was sold; and

"(4) the regularity and validity of all proceedings related to the sale of the real property."

Presumptive evidence stands until rebutted. The presumption disappears upon evidence to the contrary. Gandy v. Orr (1942), 112 Ind.App. 605, 44 N.E.2d 181.

Therefore, the trial court had clear evidence before it of the regularity and validity of all proceedings entailing the tax sale. This necessarily includes the proceedings with respect to "notice," unless properly placed in issue. Lenard alleged generally in her complaint that the tax sale and notice statutes were not properly followed: ⁵ Additionally, she filed two affidavits in opposition to the motion for summary judgment filed by A & M. The affidavits merely argue the significance of certain evidence allege noncompliance with statutes, and state generally that there are facts in issue. ⁶ These affidavits fail for two reasons.

First, the affidavits fail to meet the requirements of Indiana Rules of Procedure, Trial Rule 56. That rule requires affidavits: (1) to be based upon personal knowledge; (2) to state facts which would be admissible evidence; and (3) to affirmatively show the affiant is competent to testify to those facts. TR. 56(E); Whitaker v. St. Joseph's Hospital (1981), Ind.App., 415 N.E.2d 737, 743; Renn v. Davidson's Southport Lumber Co., Inc. (1973), 157 Ind.App. 446, 451, 300 N.E.2d 682, 685; W. Harvey, 3 Indiana Practice 556 (1970). The affidavits submitted in opposition to the motion for summary judgment by Lenard fail all three requirements.

Secondly, the contents of Lenard's affidavits were totally inadequate. The function of the affidavit is to place facts in issue. The party opposing the motion for summary judgment must set forth specific facts showing a genuine issue for trial. TR. 56(E); Henderlong Lumber Co., Inc. v. Zinn (1980), Ind.App., 406 N.E.2d 310. As previously stated by Judge Hoffman, and of particular pertinence in the present case:

"Furthermore, the affidavit in opposition to the motion for summary judgment stated only that there are disputed issues of fact without setting forth 'specific facts showing that there is a genuine issue for trial' as required by Rule TR. 56(E), Indiana Rules of Procedure. Such affidavit is not sufficient to show a genuine issue of material fact."

Burcham v. Singer (1972), 151 Ind.App. 1, 5, 277 N.E.2d 814, 816.

TR. 56(E) provides, in pertinent part:

"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Denial of summary judgment may be challenged by a motion to correct errors after a final judgment or order is entered."

As stated by Judge Garrard in Letson v. Lowmaster (1976), 168 Ind.App. 159, 163, 341 N.E.2d 785, 788:

"This portion of the rule cannot be disregarded. The failure of the opposing party to file affidavits, etc. will not by that fact alone render him liable to judgment. TR. 56(C); Walker v. Statzer (1972), 152 Ind.App. 544, 284 N.E.2d 127. On the other hand, where the materials filed by the moving party do establish the lack of any genuine issue of material fact, it is incumbent upon the opposing party to comply with the above-quoted requirement of TR. 56(E). If he does not do so and upon the basis of the materials before the court, the movant is entitled to judgment as a matter of law, summary judgment may be entered against him." (footnote omitted, original emphasis)

The tax deed, as "prima facie" evidence of the regularity and validity of all proceedings and the tax sale certificate creating a "presumption" of the same, entitled A & M to summary judgment as a matter of law.

II. Issues Waived

Two other issues, which Lenard attempted to raise upon appeal, are waived. Her appellate brief postured the first of these alleged issues as follows:

"Does the statute on presumption of evidence relating to a tax certificate preclude that these facts being raised at the trial of the cause when all the steps necessary to properly conduct a tax sale are not shown to have been taken properly?"

This alleged issue was presented to the trial court in the brief in opposition to A & M's motion for summary judgment:

"Defendant relies most heavily on a statute, I.C. 6-1.1-24-11 which sets forth that a certificate of sale is presumptive evidence of regular proceedings, and the Plaintiff has two years to rebut this presumption, said two years being from the date of the certificate being...