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Jenner v. Bloomington Cellular Services, Inc.

Court of Appeals of Indiana

June 12, 2017

David L. Jenner and Vickie Jenner, Appellants-Petitioners,
v.
Bloomington Cellular Services, Inc., Appellee-Respondent, and Crown Castle South LLC, Appellee-Intervenor.

         Appeal 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.

          BAILEY, JUDGE.

         Case Summary

         [¶1] 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.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] 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.

         [¶4] 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 interest.

         [¶5] 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.

         [¶6] 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.[1]

         [¶7] 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 6.

         [¶8] 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.

         [¶9] 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.

         [¶10] 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.

         Discussion and Decision

         The Nature of the Jenners' Appeal

         [¶11] 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).

         [¶12] 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.

         [¶13] 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.

         Nature of Bona Fide Purchasers ...


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