ATTORNEYS FOR PETITIONER: DAVID A. SUESS DANIEL R. ROY
BENJAMIN A. BLAIR FAEGRE BAKER DANIELS LLP Indianapolis, IN
ATTORNEYS FOR RESPONDENT: CURTIS T. HILL, JR. ATTORNEY
GENERAL OF INDIANA WINSTON LIN KELLY S. EARLS ZACHARY D.
PRICE DEPUTY ATTORNEYS GENERAL Indianapolis, IN
ORDER ON RESPONDENT'S MOTION TO DISMISS
BLOOD WENTWORTH, JUDGE
January 25, 2019, the Court dismissed Convention Headquarters
Hotels, LLC's ("CHH's") first direct appeal
with this Court for lack of subject matter jurisdiction.
See generally Convention Headquarters Hotels v.
Marion Cty. Assessor (Convention
Headquarters I), 119 N.E.3d 245 (Ind. Tax Ct. 2019).
In that case, the Court held that even though Indiana Code
§§ 6-1.1-15-4(i)(2) and 6-1.1-15-5(g) provided for
a direct appeal to the Tax Court without an Indiana Board of
Tax Review final determination, the Court lacked subject
matter jurisdiction over CHH's direct appeal
"because the maximum time for the Indiana Board to give
notice of its final determination had not elapsed when CHH
sought judicial review[.]" Id. at 250.
Accordingly, the Court remanded the matter to the Indiana
Board explaining that "once the maximum time for the
Indiana Board to give notice of its final determination
lapses (i.e., 366 days after CHH filed its Form 131
petition), CHH may once again seek direct review in the Tax
March 1, 2019, CHH filed its second direct appeal with the
Court claiming, among other things, that the 2010 assessment
of its real property violated the Equal Protection and Due
Process Clauses of the U.S. Constitution and the Property
Taxation and Equal Privileges and Immunities Clauses of
Indiana's Constitution. Before the Court addresses the
merits in this case, however, it must determine anew whether
it has subject matter jurisdiction over this direct appeal.
The Court finds it does not.
January 28, 2019, upon remand, the Indiana Board scheduled
CHH's case for a hearing on March 1, 2019. (Resp't
Mot. Dismiss, Ex. 1 at 2.) On February 8, the Assessor
requested that the Indiana Board issue a subpoena duces
tecum to CHH, which it did, requiring the deposition of
CHH's designated Indiana Trial Rule 30(B)(6) witness on
February 22 and the simultaneous production of certain
documents. (See Resp't Mot. Dismiss, Ex. 1 at
3-9, 22-27.) See also 52 Ind. Admin. Code 2-8-4(d)
(providing that "upon receipt of a properly filed
request, the appropriate subpoena shall be issued"). On
February 14, the Indiana Board issued a "Preliminary
Order on Remand" explaining the propriety of scheduling
the March 1 hearing. (See Resp't Mot. Dismiss,
Ex. 1 at 12-14.)
responded on February 20 by filing a "Motion to Vacate
Hearing," explaining that it would not attend the March
1 hearing because it planned to file another direct appeal
with the Tax Court after the maximum time elapsed on February
28, 2019, the date it calculated using its own arithmetic.
(See Resp't Mot. Dismiss, Ex. 1 at 15-21.) In
addition, the day before the February 22 deposition, CHH
filed a "Motion for Protective Order Pursuant to Trial
Rule 26(C)," claiming a protective order was warranted
"to resolve the deficiencies in, clarify, and otherwise
tailor the scope of the [Assessor's 30(B)(6) deposition]
Notice and Request [for Production of Documents] so that [it]
could adequately prepare its witness(es) for a
deposition." (Resp't Mot. Dismiss, Ex. 1 at 22-27.)
February 22, the Assessor appeared for the deposition, but
CHH did not, consistent with its previous communications with
both the Assessor and the Indiana Board. (See, e.g.,
Resp't Mot. Dismiss, Ex. 1 at 43-48.) Consequently, that
same day, the Assessor filed a "Motion to Compel"
the deponent's appearance and the production of
documents. (Resp't Mot. Dismiss, Ex. 1 at 28-44.) On
February 25, the Indiana Board denied CHH's Motion to
Vacate the March 1 hearing and explained that it would
address the pending discovery issues during the hearing.
(Resp't Mot. Dismiss, Ex. 1 at 49-52.)
March 1 at 12:02 a.m., nearly nine hours before the
commencement of the hearing, CHH filed this second direct
appeal with the Tax Court, immediately notifying the Indiana
Board and the Assessor of its actions. (See
Pet'r Pet. Judicial Review at 1; Resp't Mot. Dismiss,
Ex. 1 at 53.) The Assessor appeared for the Indiana
Board's 9:00 a.m. March 1 hearing, but CHH did not.
(Resp't Mot. Dismiss, Ex. 1 at 53.) Thereafter, the
Assessor filed a "Motion for Sanctions" with the
Indiana Board for CHH's failure to appear. (Resp't
Mot. Dismiss, Ex. 1 at 54-58.)
April 1, 2019, the Assessor moved to dismiss CHH's second
direct appeal with the Tax Court claiming, among other
things, that the appeal was premature. CHH filed its response
brief on April 11, 2019, and the Assessor filed a brief in
reply on April 18, 2019. Thereafter, the Court took the
matter under advisement.
matter jurisdiction, the power of a court to hear and
determine a particular class of cases, can only be conferred
upon a court by the Indiana Constitution or by statute.
Grandville Co-op., Inc. v. O'Connor, 25 N.E.3d
833, 836 (Ind. Tax Ct. 2015). Consequently, the
"'[t]he only relevant inquiry in
determining whether any court has [ ] subject matter
jurisdiction is to ask whether the kind of claim which the
plaintiff advances falls within the general scope of the
authority conferred upon [the] court by the constitution or
by statute.'" Marion Cty. Auditor v. State,
33 N.E.3d 398, 400-01 (Ind. Tax Ct. 2015) (quoting
Pivarnik v. N. Ind. Pub. Serv. Co., 636 N.E.2d 131,
137 (Ind. 1994)).
Court is a court of limited jurisdiction. Ind. Code §
33-26-3-1 (2019). It has "exclusive jurisdiction over
any case that arises under the tax laws of Indiana and that
is an initial appeal of a final determination made by"
the Indiana Board. I.C. § 33-26-3-1. The Tax Court also
has "any other jurisdiction conferred by
statute[.]" Ind. Code § 33-26-3-2 (2019). See
also Ind. Code § 33-26-3-3 (2019) (stating that the
Court does not have "jurisdiction over a case unless . .
. [it] has otherwise been specifically assigned jurisdiction
by statute"). Accordingly, the Tax Court has subject
matter jurisdiction over an appeal, even though there is no
Indiana Board final determination, if the appeal is filed
after "the ma ...