Schaefer v. Kumar, No. 45A03-0203-CV-94
| Decision Date | 03 March 2004 |
| Docket Number | No. 45A03-0302-CV-54., No. 45A03-0203-CV-94 |
| Citation | 804 N.E.2d 184 |
| Parties | Thomas SCHAEFER, Appellant-Petitioner, v. Atul KUMAR, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Edward R. Hall, Merrillville, IN, Attorney for Appellant.
James J. Nagy, Munster, IN, Attorney for Appellee.
Thomas Schaefer appeals a summary judgment for Atul Kumar on Schaefer's complaint to set aside Kumar's tax deed for a parcel of real estate ("the property") located in Lake County.1 Schaefer raises one issue on appeal, which we expand and restate as: 1) whether the trial court erred in granting summary judgment in favor of Kumar on the basis that Schaefer's complaint was barred by a one-year statute of limitation, and 2) whether the grant of summary judgment in favor of Kumar can be affirmed based upon any other theory supported by the designated materials.
We affirm.2
On September 23, 1998, Kumar purchased the property at a tax sale and was issued a tax sale certificate by the Lake County Auditor. On January 13, 2000, the trial court entered a judgment in favor of Kumar ordering the county auditor to issue a tax deed for the property to Kumar. On May 23, 2000, the county auditor issued Kumar the tax deed. On August 23, 2001, Schaefer filed a complaint to set aside the tax sale and tax deed within the tax sale proceeding. Schaefer alleged he had not received notice of the tax sale as required by Ind.Code § 6-1.1-24-4, notice of right of redemption as required by Ind.Code § 6-1.1-25-4.5, and notice of petition for tax deed as required by Ind.Code § 6-1.1-25-4.6.4
Kumar moved for summary judgment arguing Schaefer's complaint was barred by the one-year statute of limitation under Ind. Trial Rule 60(B). Kumar also filed a motion in limine5 seeking to exclude Schaefer's evidence challenging the validity of Kumar's tax sale certificate. Schaefer moved for summary judgment and designated evidence in support of his contention that the notice of tax sale was defective. Schaefer's designated evidence included a copy of the county auditor's transfer record for the property; the affidavit of Doug Hensley, the Lake County Chief Deputy Auditor; and a copy of an envelope of a returned piece of certified mail the county auditor's office sent to Schaefer.
The transfer record is not a model of clarity but indicates the address of the property is "9730 CLARK ST" and that John Schaefer was the previous owner of the property. The transfer record lists John Schaefer's Louisiana address. (Appellant's App. at 69.) The following entry is dated November 2, 1995:
(Id.) The next entry indicates that on November 30, 1996, ownership of the property was transferred to:
The deputy auditor's affidavit provides in pertinent part that 4. I have personally inspected the files and documents relevant to the subject properties and have found that;
a. The Records contained in the Auditors Office note a change in the address to where the tax bills were to be sent pursuant to a conversation with someone who claimed to be the son of the recorded property owner. This is in violation of our policy which requires a written directive from the taxpayer to change the location to where property tax bills are to be sent.
b. The Auditor's office sent the actual notices to the new address which was vacant property and said notices were returned unclaimed. No actual notices were sent to any other address for the property owner of the subject property as required by IC 6-1.1-24-4, notifying him of the sale of the subject properties for delinquent taxes.
(Id. at 70.)
The envelope for the returned piece of certified mail from the county auditor's Office to Schaefer is postmarked July 16, 1998, and addressed to:
SCHAEFER, THOMAS M 9730 CLARK ST ST JOHN IN XXXXX-XXXX
(Id. at 72.) It is marked returned to sender because there is no such street or number.
Kumar responded to Schaefer's motion for summary judgment by designating an affidavit from Kumar's attorney and exhibits attached thereto indicating the attorney had sent Schaefer the notice of the right of redemption as required by Ind.Code § 6-1.1-25-4.5 and the notice of the petition for tax deed as required by Ind.Code § 6-1.1-25-4.6.6 Copies of the returned envelopes indicate that the two notices were sent to Schaefer at both the 9730 Clark Street address and the 5208 W. 101st Avenue address. However, the envelopes are all marked as being returned to sender. The envelopes for the notices sent to the 5208 W. 101st Avenue address are marked as being returned to sender because they were unclaimed.
On March 8, 2002, during the hearing on the motions for summary judgment, the trial court granted Kumar's motion in limine. At the conclusion of a hearing on the motions for summary judgment, the trial court stated "[Kumar's] Motion for Summary Judgment will be granted and if [Kumar's attorney] would submit within seven days an order for the Court's approval and signature." (Id. at 25.) The Chronological Case Summary ("CCS") indicates on March 12, 2002, "Summary Judgment entered for Atul Kumar against Schaefer on key # XX-XX-XXXX-XXXX." (Id. at 1.) On March 20, 2002, Schaefer filed his Notice of Appeal.
The trial court's written order granting summary judgment in favor of Kumar and denying Schaefer's motion for summary judgment indicates it was signed by the judge and filed on April 1, 2002.7 The order provides in pertinent part that:
(Id. at 3-4.)
A trial court "does not have jurisdiction to continue with a case concerning matters from which an appeal is taken as long as that appeal is pending." Schumacher v. Radiomaha, Inc., 619 N.E.2d 271, 273 (Ind.1993) (emphasis supplied). "The purpose of viewing jurisdiction in this formalistic manner is to facilitate `the orderly presentation and disposition of appeals and [prevent] the confusing and awkward situation of having the trial and appellate courts simultaneously reviewing the correctness of the judgment.'" Id. (quoting Coulson v. Ind. & Mich. Elec. Co., 471 N.E.2d 278, 279 (Ind.1984)).
Our supreme court stated in Westfall v. Wait, 161 Ind. 449, 68 N.E. 1009, 1010 (1903):
It seems to be thoroughly settled by the decisions of the American courts that an appeal from a final judgment rendered generally upon the issues in a cause, when properly perfected, carries the whole case embraced within the final adjudication absolutely from the jurisdiction of the trial court to the appellate tribunal.... Where an appeal has been perfected, the jurisdiction of the appellate court over the subject-matter and parties attaches, and the trial court has no power to render any further decision affecting the rights of the parties in the cause until it is remanded[.] ... At the bottom of the rule is the infeasibility of two courts having authority over the same case at the same time. The right to retax costs, to correct the record of the trial proceedings, to enforce the judgment when not stayed by order or supersedeas, and the like, remain in the trial court as incidents essential to the perfection and effectiveness of the litigation; but after the case the parties made has been finally adjudicated, and the parties dismissed from further attendance upon court, or the case transferred to another jurisdiction by appeal, there remains in the trial court no power to... reopen the issues and extend the litigation between the parties affecting the subject-matter of the appeal[.]
This rule serves two important interests. It furthers judicial economy in that it spares the trial court from passing on questions that may well be rendered moot by the appellate court's decision. It also promotes fairness to the parties, who might otherwise be forced, as a matter of tactics, to fight a "two front war" for no good reason. Shewchun v. United States, 797 F.2d 941, 943 (11th Cir.1986). It is apparent that both those interests are implicated in the case before us, and both purposes are served by our determination the trial court lacked jurisdiction to entertain Schaefer's complaint as "cross-petitioner" against the county recorder. We accordingly review only the first summary judgment in Kumar's favor.
On appeal from summary judgment, we face the same issues that were before the trial court and follow the same process. Reeder Associates II v. Chicago Belle, Ltd., 778 N.E.2d 828, 831 (Ind.Ct.App. 2002), trans. denied 792 N.E.2d 42 (Ind. 2003). Summary judgment is appropriate only where the designated evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id.; T.R. 56(C). A genuine issue of material fact exists where facts concerning an issue that would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue. Commercial Coin Laundry Sys. v. Enneking, 766 N.E.2d 433, 438 (Ind.Ct.App.2002).
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