Rossman v. Dunson

• Decision Date: 29 October 1991
• Docket Number: No. 29A02-9010-CV-639,29A02-9010-CV-639
• Citation: 580 N.E.2d 304
• Parties: Robert W. ROSSMAN and Marc L. Griffin, Appellants-Plaintiffs/Counter-Defendants Below, v. James E. DUNSON, Appellee-Defendant/Counter-Plaintiff Below, Curtis Coonrod, as Auditor of Marion County, Indiana, Third-Party Defendant Below, 1
• Court: Indiana Appellate Court

Page 304

580 N.E.2d 304

Robert W. ROSSMAN and Marc L. Griffin Appellants-Plaintiffs/Counter-Defendants Below, v. James E. DUNSON, Appellee-Defendant/Counter-Plaintiff Below Curtis Coonrod, as Auditor of Marion County, Indiana Third-Party Defendant Below,

No. 29A02-9010-CV-639. ¹

Court of Appeals of Indiana, Third District.

Oct. 29, 1991.

Gregory P. Schmith, Indianapolis, for appellants-plaintiffs/counter-defendants.

R.C. Richmond, III, Sommer & Barnard, PC, Indianapolis, for appellee-defendant/counter-plaintiff.

Linley E. Pearson, Atty. Gen., Jane E. Griffin, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, amicus curiae.

STATON, Judge.

Robert W. Rossman and Marc L. Griffin appeal from a judgment quieting title to real estate in favor of James E. Dunson. The parties raise three issues for our review, which we have restated as follows:

I. Whether the 1988 amendment to Indiana Code 6-1.1-25-4 changing the redemption period for property sold at a tax sale from two years to one year applies to property sold at an October 1987 tax sale.

II. Whether the application of the 1988 amendment to Indiana Code 6-1.1-25-4 to property sold at an October 1987 tax sale unconstitutionally infringes upon the owner's contract rights.

III. Whether proper notice of the redemption period was given to the owner.

We reverse.

This case turns upon the effect of the 1988 amendment to Indiana Code 6-1.1-25-4 on a tax sale of property. On October 8, 1987, Rossman and Griffin ("Purchasers") purchased the real estate in question at a tax sale, and were issued a certificate of sale. The record owner before the sale was James E. Dunson. In January of 1988, an amendment to Indiana Code 6-1.1-25-4 went into effect, reducing the redemption period for properties sold at tax sale from two years to one year. The statute provides in part:

(a) If a certificate of sale is issued to a purchaser under IC 6-1.1-24-9 and the real property is not redeemed within:

(1) one (1) year after the date the certificate is issued;

(2) ninety (90) days from the date of the certificate of sale from a purchasing agency qualified under IC 36-7-17; or

(3) sixty (60) days from the date the certificate is issued for real property on the list prepared under IC 6-1.1-24-1.5;

the county auditor shall, upon receipt of the certificate and subject to the limitations contained in this chapter, execute and deliver a deed for the property to the purchaser. If a certificate of sale is issued to a county under IC 6-1.1-24-9 and the real property is not redeemed within one (1) year after the date the certificate is issued, the county auditor shall, upon receipt of the certificate and subject to the limitations contained in this chapter, issue a deed for the property to the county. The county auditor shall execute deeds issued under this section in the name of the state under his name and seal. If a certificate of sale is lost before the execution of a deed, the county auditor may execute and deliver a deed if he is satisfied that the certificate did exist.

Purchasers were issued a tax deed to the disputed property on March 29, 1989. On May 17, 1989 they brought this quiet title action, naming Dunson as the defendant. Dunson counterclaimed and attempted to tender the redemption amount to the Marion County Auditor. The Marion County Auditor, Curtis Coonrod, was later made a third-party defendant.

The trial court granted Dunson's motion for summary judgment, finding that the earlier version of Indiana Code 6-1.1-25-4, providing for a two-year redemption period, applied. The court also stated that to apply the amended version of the statute would result in an impairment of contract rights, violative of the state and federal constitutions. Purchasers appeal, contending that the amended version of the statute applies.

On an appeal from a summary judgment, we must determine whether the record reveals a genuine issue of material fact and whether the trial court correctly applied the law. Boone County Area Plan Com'n v. Kennedy (1990), Ind.App., 560 N.E.2d 692, 694, trans. denied. Any doubt as to a fact, or an inference to be drawn, is resolved in favor of the nonmoving party. Bischoff Realty, Inc. v. Ledford (1990), Ind.App., 562 N.E.2d 1321, 1323. Summary judgment will be affirmed if it is sustainable upon any theory supported by the record. Kolczynski v. Maxton Motors Inc. (1989), Ind.App., 538 N.E.2d 275, 276, transfer denied.

Issues I and II

Application of the Amended Statute

Purchasers contend that the amended version of the statute applies, providing for a one-year redemption period. Further, they contend that the application of the amended statute would not create an unjustifiable impairment of contract. These precise issues were addressed earlier this year by our Second District in Metro Holding Co. v. Mitchell (1991), Ind.App., 571 N.E.2d 580, reh'g denied. ² Faced with identical facts, the court examined the law in Indiana and other jurisdictions and held that the amended statute providing for a reduced redemption period applied and that the application of the statute to property purchased at the October 1987 tax sale did not create an unjustifiable impairment of contract.

We conclude that the 1987 amendment to Indiana Code 6-1.1-25-4, providing for a one-year redemption period, applies to this case as well.

III

Compliance With Statute

Dunson argues that even if the amended statute applies, it was not complied with in this case, and therefore he was entitled to summary judgment in the quiet title action. He first argues that he did not receive notice of the expiration of the redemption...