Swammi, Inc. v. Shambaugh, Kast, Beck, Williams, LLP

• Citation: 970 N.E.2d 796
• Decision Date: 13 July 2012
• Docket Number: No. 02A01–1109–PL–417.,02A01–1109–PL–417.
• Parties: SWAMMI, INC., f/k/a Swami, Inc., Appellant–Plaintiff, v. SHAMBAUGH, KAST, BECK, WILLIAMS, LLP and John S. Bloom, Appellees–Defendants.
• Court: Court of Appeals of Indiana

970 N.E.2d 796

SWAMMI, INC., f/k/a Swami, Inc., Appellant–Plaintiff,

v.SHAMBAUGH, KAST, BECK, WILLIAMS, LLP and John S. Bloom, Appellees–Defendants.

No. 02A01–1109–PL–417.

Court of Appeals of Indiana.

July 13, 2012.

Appeal from the Allen Circuit Court; The Honorable Natalie R. Conn, Judge; Cause No. 02C01–0801–PL–17.

Timothy Logan, Marlin R. Benson, Benson, Pantello, Morris, James & Logan, LLP, Fort Wayne, IN, Attorneys for Appellant.

Benjamin D. Ice, William A. Ramsey, Murphy Ice & Koeneman LLP, Fort Wayne, Indiana, Attorneys for Appellees.

MEMORANDUM DECISION—NOT FOR PUBLICATION

MAY, Judge.

In 2008, Swammi, Inc.¹ sued John Bloom and his law firm Shambaugh, Kast, Beck, and Williams, LLP, (collectively, “Bloom”), for legal malpractice based on Bloom's representation of Swammi in litigation involving some of Swammi's real estate sold at a tax sale. A jury found Bloom not liable. We affirm.

FACTS AND PROCEDURAL HISTORY

We summarized the underlying tax sale action in Retz v. Swami, Inc., No. 02A03–0706–CV–254, 2008 WL 204681 (Ind.Ct.App. Jan. 25, 2008), aff'd on reh ‘g trans. denied :

Swami is a for-profit Indiana corporation. In 1999, Swami purchased a parcel of real property in Allen County, located at 9100 Illinois Road in Fort Wayne (“the Property”). Swami paid no property taxes on the Property from May 11, 2000, through July 2002. In July 2002, the Allen County treasurer's office certified the Property for placement in the 2002 Allen County fall tax sale.

At all relevant times, Swami's principal place of business was the residence of its president, Subhash Reddy. Reddy changed residences four times during the three-and-a half-year period following Swami's purchase of the Property, but Swami never filed a notarized change of address affidavit or notarized letter seeking a change of address. The Allen County auditor's office sent a notice of tax sale to Swami's address of record, but it was marked “Undeliverable as Addressed” and returned to the auditor's office. Appellant's App. at 535–36, 547. The auditor's office searched its records and a local phonebook, but found no other address for Swami. The auditor's office sent a second notice to Swami addressed to an adjoining property owned by Swami, but that was returned to the auditor's office marked “No Such Number.” Id. at 537, 548. Additional notice of the tax sale was posted at a public place of posting and published in two local newspapers for three consecutive weeks prior to the tax sale.

Retz bought the Property at the 2002 tax sale. The price Retz paid for the Property exceeded the delinquent fees and taxes owed on the Property, and the surplus was claimed by Swami's agent, National Cash Refund, Inc.

During the one-year redemption period, the auditor's office sent notice to Swami that the tax sale had taken place. The notice was returned as undeliverable. Id. at 540, 562. A title search on the Property revealed Mid Am Bank, the mortgagee of record, as the only person with a substantial property interest of public record. The auditor's office also sent notice of the tax sale to Mid Am Bank, which was accepted.

After the redemption period expired, another notice was sent to Swami and returned. Id. at 542, 567. An identical notice sent to Mid Am Bank was accepted. On October 8, 2003, the auditor's office filed a petition with the trial court, requesting authority to issue a tax deed to Retz for the Property. On November 14, 2003, the trial court ordered the issuance of the tax deed to Retz. Id. at 118. On November 24, 2003, the auditor's office transferred and conveyed to Retz a tax deed for the Property.

On January 12, 2004, Swami filed its verified objection to the issuance of tax deed, in which it stated that it had never received notice of the tax sale and had no actual knowledge of the tax sale or actions related to it. Id. at 123–24. On January 30, 2004, Retz moved to intervene. On March 31, 2005, Retz filed a motion for summary judgment, arguing that

[ (1) ] the Auditor's Office properly performed all essential acts concerning the tax sale and substantially complied with the statutory procedures, thus satisfying due process requirements [; (2) ] Swami failed to rebut the prima facie evidence regarding the regularity and validity of the tax sale proceedings [; (3) ] notice to Swami at its last known address was adequate and Swami's failure to inform the Auditor's Office of its current address precludes its lack of notice defense [; (4) ] Swami waived its right to the [Property] by claiming the entire Surplus fund from the County. Id. at 63, 66, 68, 71. Swami filed a cross motion for summary judgment, arguing that it satisfied the statutory requirements necessary to defeat the tax deed, that it was entitled to a cancellation of the tax deed based on theories of equity, and that the Property was taken from it without just compensation in violation of federal and state constitutional guarantees. Id. at 154–68. The trial court granted Retz's motion for summary judgment and denied Swami's cross motion for summary judgment. Swami appealed, raising the following issues:

1. Whether the trial court erred when it applied the plain meaning of the words and phrases in Indiana Code Section 6–1.12516 and refused to set aside a tax sale.

2. Whether Swami is entitled to relief under Indiana Trial Rule 60(B) based on an alleged misrepresentation by an employee in the Allen County Treasurer's Office regarding the amount of real property taxes due.

3. Whether [the limitation of remedies in] Indiana Code Section 6–1.1–25–16 violates a taxpayer's [substantive] due process rights under the United States Constitution and the Indiana Constitution.

Swami, Inc. v. Lee, 841 N.E.2d 1173, 1174 (Ind.Ct.App.2006), trans. denied. In affirming the trial court, we held that (1) Swami failed to inform the auditor's office of its change of address and therefore was not entitled to equitable relief; (2) Swami did not file a Trial Rule 60(B) motion with the trial court and therefore could not challenge the tax deed on that basis at the ppellate level; and (3) the limitation of remedies provided by Indiana Code Section 6–1.1–25–16 did not violate substantive due process rights. Id. at 1180–81. We noted that Swami did not contend that the auditor failed to comply with notice requirements. Id. at 1180.

On March 8, 2006, Swami petitioned for transfer to the Indiana Supreme Court presenting the following question:

Whether this case presents an important question of law and a question of great public importance that has not been, but should be, decided by the Supreme Court where the Court of Appeals concluded that equity should not intervene to set aside a tax sale deed where a landowner's representative was given inaccurate information about property taxes owed and a pending tax sale by a county official responsible for collection of property taxes.

Appellant's App. at 306. On April 26, 2006, the United States Supreme Court decided Jones v. Flowers, 547 U.S. 220 (2006), in which the court held that when notice of a tax sale is mailed to the owner and returned undelivered, the Due Process Clause of the Fourteenth Amendment requires the government to take additional reasonable steps to provide notice before taking the owner's property. 547 U.S. at 234. On May 16, 2006, while transfer was still pending, Swami filed a verified motion to remand so that the trial court could examine whether Indiana's statutory notice requirements satisfied federal due process rights in light of the Flowers decision. SeeInd. Appellate Rule 37 (“At any time after the Court on Appeal obtains jurisdiction, any party may file a motion requesting that the appeal be dismissed without prejudice or temporarily stayed and the case remanded to the trial court or Administrative Agency for further proceedings.”). On July 6, 2006, the Indiana Supreme Court denied transfer without ruling on Swami's motion to remand.

On August 25, 2006, Swami filed the motion for relief from judgment pursuant to Trial Rule 60(B)(6) that is the subject of this appeal. In the motion, Swami alleged that the “Allen County Auditor's efforts to provide notice to Swami of the tax sale and petition for tax deed were insufficient to satisfy due process given the circumstances of this case. Consequently, the tax sale and tax sale deed are void.” Appellant's App. at 448. The trial court granted Swami's motion. Retz appeals.

2008 WL 204681 at *l–3 (footnotes omitted).

We reversed the grant of Swammi's motion for relief from judgment, holding its claim that the notice provided by the auditor was in violation of his due process rights was available and could have been litigated during its earlier challenge. Id. at *5. Because Swammi had not argued to the trial court that the auditor's notice violated federal due process in its first challenge, we would have found the issue waived on direct appeal had Swammi attempted to raise it there. Id. n. 13. Swammi was therefore precluded by the doctrine of res judicata from claiming that the tax deed was void due to inadequate notice. Id.

While we reversed based on res judicata, we noted our disagreement with Swammi's assertion that Flowers drastically modified Indiana law:

The Flowers court noted that its decision was in accord with its previous decisions, in that these decisions all “deemed notice constitutionally sufficient if it was reasonably calculated to reach the intended recipient when sent.” 547 U.S. at 226. The Flowers court then observed that “[t]he Courts of Appeals and State Supreme Courts have addressed this question on frequent occasions, and most have decided that when the government learns its attempt at notice has failed, due process requires the government to do something more before real property may be sold in a tax sale.” Id. at 227. Indeed, the Flowers court stated, “In particular, we disclaim any new rule that is contrary to [Dusenbery v. United States, 534 U.S. 161 (2002) ] and...