from the Warrick Circuit Court The Honorable Greg A. Granger,
Judge Trial Court Cause No. 87C01-1008-MI-572
ATTORNEY FOR APPELLANT Leanna Weissmann Lawrenceburg, Indiana
ATTORNEYS FOR APPELLEES Chad D. Wuertz Wuertz Law Office, LLC
Attorneys, like gamblers, should "know when to hold
'em [and] know when to fold 'em." Instead of
walking away from litigation that was essentially over,
attorneys representing the owners of property that was sold
for nonpayment of taxes racked up thousands of dollars in
fees and costs trying to keep the buyer of the property,
Wiper Corporation ("Wiper"), from receiving a
refund for its tax sale purchase, which had been invalidated
by county officials on unspecified grounds. The refund issue
is governed by statute and is not within the property
owners' control. After a hearing, the trial court issued
an order denying Wiper a refund and applying the purchase
money to the property owners' delinquent tax obligations.
Wiper contends that the trial court had no legal authority to
do so. We agree and therefore reverse and remand on this
The trial court also ordered Wiper to pay the property
owners' attorney's fees and costs dating back to
November 2011, when Wiper petitioned for a tax deed to their
property, based on a finding that Wiper deceived the court
and failed to comply with statutory notice requirements and
the property owners' discovery requests. Wiper contends
that the trial court erred in doing so. We agree with the
trial court's decision to award fees and costs based on
Wiper's misconduct but hold that the award should be
limited to fees and costs incurred before February 25, 2013,
when Wiper essentially folded 'em by conceding the
invalidity of its tax sale purchase. Therefore, we also
reverse and remand on this issue.
On cross-appeal, the property owners contend that the trial
court erred in failing to impose sanctions against
Wiper's attorney and in deeming certain issues moot in a
prior order. We find these issues waived and therefore affirm
in relevant part.
and Procedural History
In March 2007, Fifth Third Bank, as trustee of the May S.
Zwickel Trust, conveyed property in Warrick County ("the
Property") to Patricia Godwin, Barbara Sanders, Linda
Kaufman, James Zwickel, Thad Fischer, Trent Fischer, and
Trina Fischer Boden (collectively "the Owners") by
trustee's deed. The deed lists the Owners' mailing
address as James's address in Tennessee ("the
Tennessee Address") and indicates that tax statements
should be sent to that address. Owners' Ex. 8. The deed
was recorded in the Warrick County recorder's office in
April 2007. Id.
According to James, the house he "grew up in" was
on the Property. Tr. At 91. He was responsible for paying
taxes on the Property for several years after the deed was
issued, and then Patricia "was supposed to pay them for
several years." Id. at 94. James moved from the
Tennessee address in late 2009 or early 2010, and Patricia
was supposed to have the Warrick County auditor's records
updated to reflect her Colorado address but did not do so
because "she had a lot going on in her life."
Id. at 100. In any event, the Owners did not pay the
2008 and 2009 taxes on the Property.
"If an owner of real estate fails to pay the property
taxes, the property may be sold in order to satisfy the tax
obligation." In re 2007 Tax Sale in Lake Cty.,
926 N.E.2d 524, 527 (Ind.Ct.App. 2010). "The tax sale
process is purely a statutory creation and requires material
compliance with each step of the governing statutes
…." Id. "The tax sale process
involves the issuance of three notices to the property owner.
The first required notice is the county auditor's notice
of tax sale …." Id. "The second
required notice is the notice of the right of redemption,
which the person who purchases the property at a tax sale
sends to the owner of the property." Id. at
528. And the third required notice is the notice of filing a
petition for tax deed, which the purchaser sends to the
property owner. Id.
In July 2010, the Warrick County auditor sent a notice of tax
sale to the Owners via certified mail to the Tennessee
Address. The certified mail receipt was signed by a person
with no interest in the Property. On August 30, 2010, the
auditor and the treasurer filed a joint application for
judgment and order of sale for numerous properties with
delinquent taxes, including the Property. The next day, the
trial court entered a judgment and order of sale.
On September 16, 2010, the treasurer sold the Property to
Vinod Gupta at the tax sale for $6800, which included the
delinquent 2008 and 2009 property taxes plus penalties,
interest, and costs. The auditor issued Vinod a tax sale
certificate, which Vinod assigned to Wiper. Vinod is
Wiper's president. Vinod's son Vivek acted as
Wiper's attorney during the tax sale proceedings.
The Owners had one year after the tax sale to redeem the
Property. Ind. Code § 6-1.1-25-4. At that time, Indiana
Code Section 6-1.1-25-4.5(c) provided that a purchaser of a
tax sale certificate was entitled to a tax deed to the
property only if the redemption period had expired, the
property had not been redeemed within the statutory period,
and, not later than ninety days after the date of sale, the
purchaser gave notice of the sale to "the owner of
record at the time of the sale …." Subsection (d)
of the statute provided that the purchaser "shall give
the notice by sending a copy of the notice by certified mail
to … the owner of record at the time of the [sale of
the property] at the last address of the owner for the
property, as indicated in the records of the county
auditor[.]" And subsection (h) provided that the notice
"is considered sufficient if the notice is mailed to the
address required under subsection (d)." In March 2011,
Wiper sent two envelopes ("the March Envelopes")
containing multiple notices of the tax sale via certified
mail to the Tennessee Address. Both envelopes were returned
as not deliverable as addressed/unable to forward.
In May 2011, Linda's husband Joseph went to the
treasurer's office at the request of Linda and Patricia,
his sister-in-law, who asked him to inquire if any taxes were
due on the Property, pay the taxes, and update the
county's records for the Property to reflect
Patricia's address in Colorado ("the Colorado
Address"). Joseph paid the spring 2011 property taxes
and gave the treasurer's office the Colorado Address. For
reasons unknown, the treasurer's office did not inform
Joseph about the pending tax sale proceeding. In June 2011,
the auditor's office updated the Owners' address in
The one-year redemption period for the Property expired in
September 2011.At that time, Indiana Code Section
6-1.1-25-4.6(a) stated that not later than six months after
the expiration of the redemption period, the tax sale
purchaser may file a verified petition
asking the court to direct the county auditor to issue a tax
deed if the real property is not redeemed from the sale.
Notice of the filing of this petition shall be given to the
same parties and in the same manner as provided in section
4.5 of this chapter …. The notice required by this
section is considered sufficient if the notice is sent to the
address required by section 4.5(d) of this chapter. Any
person owning or having an interest in the tract or real
property may file a written objection to the petition with
the court not later than thirty (30) days after the date the
petition was filed. If a written objection is timely filed,
the court shall conduct a hearing on the objection.
Subsection (b) of the statute provided that not later than
sixty-one days after the petition is filed,
the court shall enter an order directing the county auditor
… to issue to the petitioner a tax deed if the court
finds that the following conditions exist:
(1) The time of redemption has expired.
(2) The tract or real property has not been redeemed
(3) [A]ll taxes and special assessments, penalties, and costs
have been paid.
(4) The notices required by this section and section 4.5 of
this chapter have been given.
(5) The petitioner has complied with all the provisions of
law entitling the petitioner to a deed.
Ind. Code § 6-1.1-25-4.6(b).
In November 2011, Wiper sent two envelopes ("the
November Envelopes") containing notices of its intent to
file a verified petition for a tax deed to the Property to
the Tennessee Address via certified mail. Both envelopes were
returned as not deliverable as addressed/unable to forward.
On November 14, Wiper filed a verified petition for a tax
deed to the Property stating that it had given the notices
required by statute and "complied with all the
provisions of law entitling the purchaser to a deed."
Appellant's App. at 79.
Later that month, Patricia independently found out about the
tax sale proceeding. On November 21, the Owners filed an
objection to Wiper's petition and a motion for relief
from the trial court's judgment and order of sale. The
objection alleged that "deficiencies in the tax sale,
redemption and tax sale notice process exist herein which
preclude the entry of a tax deed in relation to the
Property." Id. at 86. On December 14, the
Owners filed a supporting brief in which they alleged that
the auditor's notice and the auditor and the
treasurer's petition regarding the tax sale were
deficient in various respects, as was the tax sale order and
Wiper's notice of tax sale under Indiana Code Section
6-1.1-25-4.5. Most important for purposes of this appeal, the
Owners also alleged that Wiper failed to provide proper
notice of the filing of the petition for tax deed under
Indiana Code Section 6-1.1-25-4.6 because, by the time that
notice was sent, the Owners' address had been updated in
the county's records to the Colorado Address. In February
2012, the trial court set a hearing on the Owners'
objection for June 13.
In the meantime, around January 19, 2012, the Owners served
their first set of discovery requests on Wiper, with a
response due on February 18. In a March 22 letter to Vivek,
the Owners' counsel Andrew Ozete stated that no response
had been received and that unless Wiper withdrew its petition
for tax deed with prejudice by March 29, Ozete would begin
preparing a motion for summary judgment that would "seek
to have all costs and attorneys' fees incurred by [the
Owners] awarded to them as a judgment against [Wiper] since
it is clear to [Ozete] now that at no time ever did [Wiper]
have a meritorious basis to maintain this action."
Id. at 314. On or about March 23, Wiper submitted
responses to the Owners' discovery requests. In response
to an interrogatory, Wiper stated that it had reviewed the
treasurer's files regarding the Property in September
2011; thus, Wiper either knew or should have known of the
Colorado Address before it sent notice of its intent to file
a petition for tax deed in November 2011. Also, Wiper did not
comply with the Owners' request to produce any documents
related to the requirements of Indiana Code Sections
6-1.1-25-4.5 and -4.6, i.e., the March Envelopes and the
November Envelopes and the certified mail receipts. On April
2, the Owners served a second set of discovery requests on
Wiper, specifically asking it to produce those documents.
On April 27, the treasurer and the auditor filed a report
stating that they deemed the tax sale to be invalid. No
reason for the invalidation was given.The report also
stated that a letter had been sent to Wiper via certified
mail that read as follows: "Pursuant to IC 6-1.1-25-10,
[the auditor and the treasurer] have found the sale of the
below listed tax sale certificates to be invalid. Please
return your tax sale certificate(s) to the [auditor's]
office. Your statutory refund will be processed upon receipt
of your tax sale certificates." Id. at 221.
Copies of the report were served on Vivek and Ozete.
On May 4, the Owners filed a motion to compel Wiper's
compliance with discovery, a motion for attorney's fees
and costs, a request for a finding that Wiper failed to
comply with notice requirements, and a request for an order
determining that Wiper was entitled to a refund of only
seventy-five percent of the tax sale surplus and was
prohibited from participating in the next tax sale pursuant
to Indiana Code Section 6-1.1-25-4.6. At that time, the
statute provided in relevant part that if a petition for tax
deed is timely filed and the court refuses to enter an order
directing the county auditor to execute and deliver the tax
deed because of the petitioner's failure to fulfill the
notice requirement under subsection (a) of the statute,
the court shall order the return of the amount, if any, by
which the purchase price exceeds the minimum bid on the
property … minus a penalty of twenty-five percent
(25%) of that excess. The petitioner is prohibited from
participating in any manner in the next succeeding tax sale
in the county under IC 6-1.1-24. The county auditor shall
deposit penalties paid under this subsection in the county
Ind. Code § 6-1.1-25-4.6(d). The statute also provided
that, notwithstanding subsection (d), "the court shall
not order the return of the purchase price or any part of the
purchase price if: (1) the purchaser … has failed to
provide notice or has provided insufficient notice as
required by section 4.5 of this chapter; and (2) the sale is
otherwise valid." Ind. Code § 6-1.1-25-4.6(f).
On May 17, Wiper filed a report stating that it had received
the letter from the auditor and the treasurer and that Wiper
had requested a reason for their invalidation of the tax sale
but had not yet received a response; Wiper opined that
"the certificate was arbitrarily invalidated."
Appellant's App. at 364. On May 21, the Owners filed a
motion to vacate the hearing on their objection to the tax
sale and a motion to set a hearing on their motion to compel.
Also on that date, Wiper filed an opposition to the
Owners' May 4 motion in which it asserted that the
Owners' pleadings were "moot" based on the
invalidation of the tax sale and that it had provided copies
of the certified mail receipts, which it had not.
Id. at 371.
On May 24, the trial court vacated the June 13 hearing and
reset it for July 12. On June 18, Wiper filed an opposition
to the Owners' motion to set a hearing on their motion to
compel and a motion to dismiss the cause pertaining to the
tax sale certificate "in its entirety, " asserting
that the Owners' "pleadings are moot based on the
invalidation" of the tax sale. Id. at 380. On
June 21, the Owners filed a response that reads in relevant
part as follows:
1. Wiper alleges that the controversy at issue in the case
has been settled or disposed of; however, that is not true in
this case. Pursuant to I.C. 6-1.1-25-4.6, an issue or
controversy exists as to how much, if any, of a refund of the
amounts paid at Tax Sale Wiper is entitled to.
2. Pursuant to that same statute, an issue exists as to
whether or not Wiper should be allowed to participate in the
next tax sale in this County.
7. In this case, as was discussed in [the Owners'] Motion
to Compel, Wiper's Verified Petition appears to have been
filed containing statements that were apparently either not
within the personal knowledge of the Affiant or deliberately
8. It also appears, as is described in the Motion to Compel,
that Wiper made misrepresentations to the Court in its prior
9. Given that Wiper and/or its principals are participants in
Tax Sales with some regularity in multiple jurisdictions
throughout the State of Indiana, including Warrick County,
Indiana, it is critical that Wiper, like a bad mortgage
servicer, be called to task and held to account for filing a
false Affidavit in this case and to be deterred from future
attempts to do so.
10. Finally, although Wiper in the Wiper Objection and Motion
to Dismiss now concedes the County's authority to
invalidate the tax sale as to the relevant certificate, (and
thus the issue of whether a tax deed may issue is clearly now
by admission of Wiper answered in the negative), this change
of position from Wiper's Report to Court sent on or about
May 14, 2012 does not resolve the issue of the amount of
refund, if any, due Wiper or resolve [the Owners']
request for sanctions.
Id. at 391-92 (citations omitted).
On June 25, the trial court vacated the July 12 hearing on
its own motion and ordered each party to submit "in
writing its position on whether this cause is ended by the
sale being declared invalid. If a party believes the matter
should not be ended, the party shall explain what issues it
believes remains to be decided by the Court."
Id. at 395. On October 20, after receiving responses
from Wiper, the Owners, and the county, the court issued an
order ("the Hearing Order") that reads in pertinent
The Court, being duly advised, and based upon the pleadings
of record issues the following findings as follows in
relation to each of the following issues:
1. Issue One: What amount, if any, of refund is Wiper
entitled to in relation to this matter?
2. Issue Two: Should Wiper and Vinod Gupta be barred from
participating in the next tax sale in this County?
It is Ordered, Adjudged and Decreed that the Hearing Issues
are the only issues remaining before the Court. All other
issues previously raised, other than as may be necessary in
relation to the enforcement of the terms of this Order, are
moot and shall not be addressed further by any party.
Id. at 426. The court set a hearing on the issues
for January 14, 2013. Neither Wiper nor the Owners sought
reconsideration of or an interlocutory appeal from the
Hearing Order. On November 15, Wiper filed a designation of
evidence and witness list. Attached to the designation was an
affidavit from Vinod stating that he had sent the tax sale
On January 7, 2013, the parties agreed to continue the
hearing to March 6. On February 7, Wiper filed a motion to
determine and order refund and a motion to quash a subpoena
requiring it to appear for a ...