NOWACKI v. WALTRUST PROPERTIES INC (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Jim Nowacki a/k/a James Nowacki (Nowacki) appeals from the trial court's orders granting summary judgment in favor of Waltrust Properties, Inc. (Waltrust) and denying his motion to correct error concerning Waltrust's Petition to Set Aside Tax Title Deed to Lake County Commissioners, Commissioners Quit Claim Deed, and for Other Relief (the Petition). Finding no error, we affirm.

Issues

[2] Nowacki presents the following restated issues for our review:

I. Whether the trial court properly granted summary judgment in Waltrust's favor on grounds that it received none of the statutorily required notices of a tax sale.

II. Whether the trial court properly denied Nowacki's motion to correct error.

Facts and Procedural History

[3] On October 19, 1998, the Lake County Trust Company, as Trustee under a Trust Agreement dated February 11, 1997 and known as Trust No. 4842 delivered a deed conveying fee ownership of certain real estate in Crown Point to Walgreen Company, an Illinois corporation. More specifically, the three parcels were described as: (1) Parcel No.: 45-16-05-178-024.000-042 (Parcel 1); (2) Parcel No.: 45-16-05-178-023.000-042 (Parcel 2); and (3) Parcel No.: 45-16-05-179-001.000-042 (Parcel 3). The instrument was duly recorded on October 22, 1998, under Instrument No. 98083708 and, for real estate tax purposes, included the notation that tax bills should be mailed to “300 Wilmot Road, Deerfield, IL, 60015 ATTN. Tax Dept.” Appellee's App. Vol. 2, p. 38.

[4] Only Parcel 3, which is shaded in, is at issue in this appeal. Id. at 22. It provides ingress and egress from the Walgreen's store, parking spaces for customers and employees, an area for posting signage, an area for rainwater and/or snow melt runoff to gather, a location for charitable item donation receptacles, and a buffer zone between the store and neighboring properties.

[5] For reasons not explained in the record, Lake County government officials failed to update their files to account for the transfer of Parcel 3 to Waltrust, although the records for Parcels 1 and 2 were revised. Over time, the real estate taxes for Parcel 3 became delinquent, and the Lake County Board of Commissioners (the Board) acquired a certificate of sale in the amount of $1,470.70 at the tax sale for Parcel 3. Then in 2007, the Lake County Auditor (Auditor) and the Lake County Treasurer (Treasurer) jointly conveyed Parcel 3 to the Board via a Tax Title Deed to County (Tax Deed). The Tax Deed was recorded on April 20, 2007 under Instrument No. 2007 033148. Next, the Board transferred Parcel 3 to Nowacki by way of a Commissioners Quit Claim Deed dated September 28, 2007 and recorded it on October 2, 2007 as Instrument No. 2007 078647. Nowacki paid $1,100.00 for Parcel 3.

[6] Nowacki contacted Waltrust, notifying it that he had purchased Parcel 3 and wished to lease Parcel 3 to Waltrust. Negotiations were unsuccessful.

[7] On June 30, 2023, Waltrust filed the Petition. Waltrust advanced alternate theories of relief. But the theory pertinent to this appeal is that as record title holder, Waltrust had not received notice of the original tax sale proceedings in violation of Indiana law and the connected right to due process.

[8] In their answers to the Petition, the Board, the Auditor, and the Treasurer each agreed that the Tax Deed and Commissioners Quit Claim Deed should be declared void and set aside. Nowacki responded, setting forth various theories in support of the tax sale's validity.

[9] Waltrust filed a motion for summary judgment. The Board, the Auditor, and the Treasurer did not respond to the motion and did not oppose the request. Prior to the hearing, Nowacki filed for Chapter 13 Bankruptcy protection in the Northern District of Indiana. The summary judgment hearing proceeded after Waltrust was granted permission by the Bankruptcy Court to proceed with the Petition in the trial court.

[10] Waltrust, the Auditor, and the Treasurer appeared by counsel, and Nowacki appeared pro se at the hearing. Both the Auditor and the Treasurer agreed that Waltrust was entitled to summary judgment based on the theories set forth in its petition. The trial court took the matter under advisement before issuing its order. The court found that Waltrust was entitled to summary judgment because “there is no genuine issue of material fact that it never received the required statutory notices: the Auditor's Notice of Tax Sale, the notice of right to redemption and the notice of the filing of a petition for a tax deed.” Id. at 15-16. Furthermore, the court held that Nowacki's statute of limitations argument was inapplicable due to the “jurisdictional defect” of the lack of statutory notice. Id. at 16. The court ordered the transfers of the Tax Deed from the Auditor to the Board and the Commissioners Quit Claim Deed from the Board to Nowacki be declared null and void and ordered that title to Parcel 3 vested solely in Waltrust.

[11] Nowacki filed a motion to correct error, arguing that actual notice was not required and that there were alleged defects in Waltrust's original deed. The trial court denied Nowacki’ motion. He now appeals.

Discussion and Decision

I. Grant of Summary Judgment

[12] Nowacki challenges the court's grant of summary judgment in favor of Waltrust. We begin our analysis by acknowledging our well-settled standard of review.

[13] “Summary judgment is a tool which allows a trial court to dispose of cases where only legal issues exist.” Rossner v. Take Care Health Sys., LLC, 172 N.E.3d 1248, 1254 (Ind. Ct. App. 2021), trans. denied. We review a court's ruling on a summary judgment motion de novo, applying the same standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). “Summary judgment is appropriate only if the designated evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Rossner, 172 N.E.3d at 1254. We must accept as true those facts established by the designated evidence favoring the non-moving party. Brill v. Regent Commc'ns, Inc., 12 N.E.3d 299, 309 (Ind. Ct. App. 2014), trans. denied. “Any doubt as to any facts or inferences to be drawn therefrom must be resolved in favor of the non-moving party.” Buddy & Pals III, Inc. v. Falaschetti, 118 N.E.3d 38, 41 (Ind. Ct. App. 2019) (quoting Goodwin v. Yeakle's Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016)), trans. denied.

[14] “We may affirm the grant of summary judgment on any basis argued by the parties and supported by the record. However, neither the trial court nor the reviewing court may look beyond the evidence specifically designated to the trial court.” Sapp v. Flagstar Bank, FSB, 956 N.E.2d 660, 663 (Ind. Ct. App. 2011) (citation omitted). “A trial court's grant of summary judgment is clothed with a presumption of validity, and the party who lost in the trial court has the burden of demonstrating that the grant of summary judgment was erroneous.” Hussain v. Salin Bank & Tr. Co., 143 N.E.3d 322, 328 (Ind. Ct. App. 2020), trans. denied.

[15] We are asked to review the trial court's determination as a matter of law that the tax sale process was flawed, rendering the deed to Nowacki void.

[16] “If an owner of real estate fails to pay the property taxes, the property may be sold in order to satisfy the tax obligation.” Reeder Assoc. II v. Chicago Belle, Ltd., 778 N.E.2d 828, 831 (Ind. Ct. App. 2002), trans. denied. The tax sale process is a statutory creation, requiring material compliance with each step of the applicable statutes, Indiana Code sections 6-1.1-24-1 through -14 (sale) and 6-1.1-25-1 through -19 (redemption and tax deeds). Reeder, 778 N.E.2d at 831. While the issuance of a tax deed creates a presumption that a tax sale and all of the steps leading up to the issuance of the tax deed are proper, this presumption may be rebutted by affirmative evidence to the contrary. Id.

[17] “The tax sale process involves the issuance of three notices to the property owner.” In Re the Matter of 2007 Tax Sale in Lake County (Hullett v. LaFevre), 926 N.E.2d 524, 527 (Ind. Ct. App. 2010). The first required notice is the county auditor's notice of tax sale, governed by Indiana Code section 6-1.1-24-4. Generally speaking, for purposes of this appeal, the statute requires the auditor to send a notice of the sale by certified mail to the owner or owners of the property at their last known address. Id. “Additionally, the auditor is deemed to be aware of the contents of the records maintained in its office, and due process requires the county auditor to search the records that it maintains.” Hullett, 925 N.E.2d at 528.

[18] “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.; see also Ind. Code § 6-1.1-25-4.5. And “[t]he third required notice is the notice of filing a petition for tax deed, which the person who purchases the property at a tax sale sends to the owner of the property.” Id.; see also Ind. Code § 6-1.1-25-4.6(a). Title conveyed by a tax deed may be defeated if the three required notices were not issued in substantial compliance with the requirements prescribed by statute. See Ind. Code § 6-1.1-25-16(7); Reeder, 778 N.E.2d at 831.

[19] In this case, Waltrust's designated evidence established that there was no genuine issue of material fact that it did not receive any of the required statutory notices. The affidavit of Keith Miller, Waltrust's Vice President of Real Estate attested to the fact that a search of Waltrust's records revealed that no tax notifications as to Parcel 3 were received. And the Auditor's, Treasurer's, and Board's answers conceded that the Tax Deed and Commissioners Quit Claim Deed were void ab initio. At the summary judgment hearing, counsel for the Auditor and Treasurer confirmed and made judicial admissions that both deeds needed to be set aside due to the errors in the tax sale process. Nowacki's alternative theories ¹ to support his continued ownership of Parcel 3 do not refute the evidence that Waltrust did not receive notice. Consequently, the trial court did not err by granting summary judgment to Waltrust on the issue of lack of notice.² The court correctly determined that title to Parcel 3 vested solely in Waltrust.

II. Denial of Motion to Correct Error

[20] Nowacki makes the argument that the trial court abused its discretion by denying his motion to correct error. We acknowledge our well-settled standard of review.

We generally review a trial court's ruling on a motion to correct error for an abuse of discretion. An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law. However, where the issues raised in the motion are questions of law, the standard of review is de novo.

Coronado v. Coronado, 243 N.E.3d 1121, 1124 (Ind. Ct. App. 2024) (quoting Ind. Bureau of Motor Vehicles v. Watson, 70 N.E.3d 380, 384 (Ind. Ct. App. 2017) (internal citations omitted)).

[21] To summarize, several of Nowacki's arguments here are reiterations of his arguments made defending against Waltrust's motion for summary judgment. And the other arguments were raised for the first time on appeal and are waived. Israel v. Israel, 189 N.E.3d 170, 177 (Ind. Ct. App. 2022) (“an issue raised by an appellant for the first time on appeal is waived”), trans. denied.

[22] Nevertheless, Nowacki contends that the trial court's order granting summary judgment is erroneous. We have concluded that it was not. As such, we conclude that the trial court did not abuse its discretion by denying Nowacki's motion to correct error.

Conclusion

[23] In light of the foregoing, we affirm the trial court's order granting summary judgment in favor of Waltrust. It received none of the statutorily required notices of the tax sale, which defeats the Tax Sale Deed and the Commissioners Quit Claim Deed as void. Further, the trial court did not abuse its discretion by denying Nowacki's motion to correct error, and we affirm its order.

[24] Affirmed.

FOOTNOTES

1.   Nowacki makes several arguments that need not be addressed because of our determination of the issue of notice. We conclude, as did the trial court, that the dispositive issue is notice.

2.   We need not address Waltrust's alternate theory of adverse possession because of our resolution on lack of notice grounds.

Crone, Senior Judge.

Mathias, J., and DeBoer, J., concur.