David L. Jenner and Vickie Jenner, Appellants-Petitioners,
Bloomington Cellular Services, Inc., Appellee-Respondent, and Crown Castle South LLC, Appellee-Intervenor.
from the Monroe Circuit Court The Honorable E. Michael Hoff,
Judge Trial Court Cause No. 53C01-1409-MI-1703
ATTORNEY FOR APPELLANTS Jon L. Orlosky Muncie, Indiana.
ATTORNEYS FOR APPELLEE CROWN CASTLE SOUTH LLC Christopher S.
Roberge Elizabeth A. Roberge Roberge Law Carmel, Indiana.
David L. Jenner and Vickie Jenner ("the Jenners")
appeal the trial court's judgment in favor of Crown
Castle South, LLC ("Crown Castle"), which declared
the Jenners' tax deed to certain real property void. The
Jenners raise three issues for our review, which we
consolidate and restate as whether the trial court abused its
discretion when it granted Crown Castle's motion for
relief from judgment under Trial Rule 60(B) and found the
Jenners' tax deed void for lack of statutory compliance.
and Procedural History
In December of 1988, Bloomington Cellular Services, Inc.
("Bloomington Cellular") became the owner of
certain real property in Bloomington on West Vernal Pike
("the Property") and had its interest in the
Property recorded. Bloomington Cellular subsequently merged
with Westel-Indianapolis Company ("Westel"), though
the chain of title to the Property did not reflect the
merger. At some point, a 228-foot tall cellular
communications tower was built on the Property.
In 1999, Westel leased the maintenance and operation of the
cell tower to Crown Castle. In March of 2000, Westel and
Crown Castle entered into a supplemental lease agreement.
Crown Castle recorded the supplemental lease agreement with
the Monroe County Recorder in May of 2000. While the
supplemental lease agreement refers to the 1999 lease
agreement, the 1999 lease agreement was not recorded. The
supplemental lease agreement was not placed in the chain of
title for the Property in which Bloomington Cellular's
ownership of the land had been recorded. In August of 2008,
Crown Castle entered into a sublease agreement with T-Mobile
Central LLC ("T-Mobile") for T-Mobile to use the
cell tower. The sublease agreement was recorded with the
Monroe County Recorder in April of 2009, but it, too, was not
placed in the chain of title with Bloomington Cellular's
On October 2, 2014, the Monroe County Treasurer held a tax
sale. At that tax sale, the Jenners purchased the tax sale
certificate for the Property. The Jenners then did a title
search on the Property and discovered only Bloomington
Cellular as an interest holder in the Property's chain of
title. Accordingly, the Jenners provided Bloomington Cellular
with the required notices, and, when Bloomington Cellular
failed to redeem the Property, in November of 2015 the
Jenners obtained a tax deed.
Less than one month later, the Jenners contacted Crown Castle
for the first time regarding the Jenners' claim of
ownership of the Property. Crown Castle then attempted to
negotiate with the Jenners regarding Crown Castle's
rights to the cell tower, but, in February of 2016, the
Jenners rejected Crown Castle's offer. Later that month,
Crown Castle intervened in the Jenners' tax-sale
proceedings and moved, under Indiana Trial Rule 60(B), to
have the court set aside the tax deed as void.
The court held a hearing on Crown Castle's motion in May
of 2016. At that hearing, Crown Castle stated that it had two
recorded interests in the Property, the 2000 supplemental
lease agreement and the 2008 T-Mobile sublease agreement.
However, Crown Castle acknowledged that, absent an online
search of the Monroe County Recorder's office for either
Westel or Crown Castle specifically, those interests would
not have been discovered. And Crown Castle further
acknowledged that it was "not sure there would be a
basis for [the Jenners] to even make that search" based
only on a review of the Property's chain of title. Tr. at
Nonetheless, Crown Castle further argued that the Jenners
should have known of Crown Castle's possible interests
not based on the Property's chain of title but, rather,
based on conspicuous signage at the Property that identified
Crown Castle as the operator of the cell tower. That signage
also provided Crown Castle's contact information. Crown
Castle offered a photograph of the signage, which was dated
April 16, 2015, to the court as a "demonstrative
exhibit" rather than as an evidentiary exhibit.
Id. at 7. The Jenners did not object to this
procedure or to Crown Castle's display of the photograph
to the court.
Rather, the Jenners argued that the photograph did not
deserve to be given weight by the court for several reasons,
namely: there was no indication as to where on the property
the signage had been placed; there was "no evidence that
these signs were readily available to the public" or
"readily accessible…without trespassing";
and, despite the photograph's apparent date of April 16,
2015, "there is no evidence as to when [the signs were]
placed." Id.at 11. The Jenners further argued
that "an interest that was recorded outside of the chain
of title…is no notice" to third parties.
Id. at 15.
Following the parties' arguments, the court took the
matter under advisement. Subsequently, the court granted
Crown Castle's motion for relief from judgment and
declared the tax deed void for lack of notice to a
substantially interested party during the period of
redemption. The court stated that Crown Castle's signage
on the Property put the Jenners on inquiry notice of Crown
Castle's possible interests, and, as the Jenners did not
follow up on that notice and inform Crown Castle of the tax
sale during the redemption period, the tax deed was therefore
void. This appeal ensued.
Nature of the Jenners' Appeal
The Jenners appeal the trial court's order granting Crown
Castle's motion for relief from judgment under Trial Rule
60. An order for relief from judgment under Trial Rule 60 is
an equitable remedy within the trial court's discretion.
In re Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind.
2013). We review an order upon a motion for relief from
judgment for an abuse of the trial court's discretion.
Id. An abuse of discretion occurs when the trial
court's order is clearly against the logic and effect of
the facts and inferences supporting the judgment. Z.S. v.
J.F., 918 N.E.2d 636, 639 (Ind.Ct.App. 2009).
Here, Crown Castle sought relief from judgment-namely, the
trial court's order granting the Jenners a tax deed-on
the basis that it had not been served with notice of the
Jenners' request for the tax deed as required by our tax
sale statutes. The trial court concluded that the
Jenners' notices were not in substantial compliance with
the statute because no notice of the Jenners' petition
for a tax deed had been given to Crown Castle. The court
found that Crown Castle's interest in the property had
been recorded and was available for inspection, and that
Crown Castle's interest in the leasehold was further made
clear through the placement of signs on the property. Thus,
the court reasoned, the tax deed was void because the Jenners
did not comply with the requirements of Indiana Code section
6-1.1-25-4.5 for notice prior to the issuance of a tax deed.
The court also concluded that the Jenners had been placed on
additional notice of the existence of Crown Castle's
interest because of language on a sign that Crown Castle had
placed on a fence on the property. The sign requested that
parties with inquiries regarding leases or other matters
contact Crown Castle, and provided contact information.
The Jenners contend that the trial court erred. The Jenners
argue that Crown Castle's lease, though concededly
recorded validly, was recorded outside the chain of title. As
a result, the Jenners contend, they were unable to identify
Crown Castle as an interest holder and thus were unable to
provide notice of their petition for a tax deed under Section
6-1.1-25-4.5, so that they had substantially complied with
the notice requirements. The Jenners argue that they were
entitled to the same treatment as a bona fide
purchaser for value; that they consequently were not required
to provide notice to Crown Castle; and that the trial court
erred when it determined that the Jenners lacked that status
and thus concluded that the Jenners had failed to provide
notice and that their deed was void. The Jenners also argue
that the trial court erred in giving any weight to the sign
on the fence next to the tower, and that the trial court had
thereby abused its discretion when it concluded that the
Jenners had sufficient information from which to identify
Crown Castle and provide notice of the tax deed petition.
of Bona Fide Purchasers ...