ATTORNEY FOR PETITIONERS:    ATTORNEYS FOR RESPONDENT:
PAUL F. LINDEMANN    STEVE CARTER
KRIEG DEVAULT LLP     ATTORNEY GENERAL OF INDIANA
Indianapolis, IN     Indianapolis, IN
    
     LINDA I. VILLEGAS    
    DEPUTY ATTORNEY GENERAL
    Indianapolis, IN
_____________________________________________________________________

    IN THE INDIANA TAX COURT _____________________________________________________________________

PAUL F. and JANET R. LINDEMANN,                                                    )
                                                                                        )
    Petitioners,                                                                        )
                                                                                        )
    v.                                                                                  )   Cause No. 49T10-0204-TA-39
                                                                                        )
J. BARRY WOOD, ASSESSOR OF                                                              )
WASHINGTON TOWNSHIP, MARION                                                             )
COUNTY,                                                                                 )
                                                                                        )
    Respondent.                                                                         )
______________________________________________________________________________
ORDER ON PETITIONERS’ MOTION FOR SUMMARY JUDGMENT

______________________________________________________________________________

NOT FOR PUBLICATION
December 12, 2002

FISHER, J.

    The Petitioners, Paul and Janet Lindemann (the Lindemanns), appeal the final determination of the Indiana Board of Tax Review (Indiana Board) establishing the assessed value of its real property as of March 1, 2000. The Court restates the issue for review as whether the increase in the grade of the Lindemanns’ house was arbitrary and capricious because the Washington Township Assessor (Assessor) did not inspect the interior of their house prior to that change. For the reasons stated below, the Court DENIES the Lindemanns’ motion for summary judgment.
FACTS AND PROCEDURAL HISTORY

     The Lindemanns own a house in Marion County, Indiana. On December 15, 2000, the Assessor sent the Lindemanns a Form 11 Notice of Assessment (Form 11) notifying them that the grade of their house was being raised from a B-1 to a B+2 for the 2000 tax year. The Assessor noted that the change in grade was in accordance with the rest of the neighborhood.
    The Lindemanns appealed their assessment to the Marion County Property Tax Assessment Board of Appeals (PTABOA) by filing a Form 130 Petition. The PTABOA inspected the interior of the Lindemanns’ property and affirmed the B+2 grade.
    On May 14, 2001, the Lindemanns appealed to the State Board of Tax Commissioners (State Board) via a Form 131 Petition. The Lindemanns argued, among other things, that the Assessor was without authority to change the B-1 grade because he had not inspected the interior of their property. The State Board held a hearing on August 8, 2001. On March 15, 2002, the Indiana Board See footnote issued its final determination, affirming the PTABOA’s determination of the B+2 grade. The Indiana Board found that although the Assessor did not physically inspect the interior of the Lindemanns’ house, the Lindemanns presented no evidence that he did not consider the interior of the house when he changed the grade. (See Admin. R. at 28.)
    On April 15, 2002, the Lindemanns initiated an original tax appeal. On September 4, 2002, the Lindemanns moved for summary judgment. This Court held a hearing on the Lindemanns’ motion on November 18, 2002. Additional facts will be supplied as needed.
ANALYSIS AND OPINION
Standard of Review

    Summary judgment is proper only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. See Ind. Trial Rule 56(C). See also Dana Corp. v. State Bd. of Tax Comm’rs, 694 N.E.2d 1244, 1246 (Ind. Tax Ct. 1998). All properly asserted facts and reasonable inferences must be construed in favor of the non-moving party, and any doubt as to the existence of a factual issue must be resolved against the moving party. Dana, 694 N.E.2d at 1246. Once the moving party establishes that no genuine issue of fact exists, the non-moving party must set forth specific facts demonstrating that there is a genuine issue in dispute. Id. If the non-moving party fails to meet this burden, summary judgment in favor of the moving party is appropriate. Id.
Discussion

    The Lindemanns argue that the increase in their house’s grade from a B-1 to a B+2 was arbitrary and capricious because the Assessor did not inspect the interior of their house prior to that change. To support their argument, the Lindemanns rely on Leehaug v. State Bd. of Tax Comm’rs, No. 49T10-9108-SC-44 (Indiana Tax Ct. June 22, 1992) (unpublished opinion). The Assessor argues that the Lindemanns’ reliance on Leehaug is improper because unpublished opinions cannot be cited as authority and, furthermore, that the Lindemanns failed to show that the increase in grade was arbitrary and capricious. The Assessor is correct.
    Unpublished opinions are not regarded as precedent and are not to be cited as authority before any court. Ind. Tax Court Rule 17; Delaplane v. Francis, 636 N.E.2d 169, 172 n.3 (Ind. Ct. App. 1994), trans. denied. Thus, the Lindemanns cannot rely on Leehaug as authority to support their argument. The Court will, nonetheless, still consider the Lindemanns’ argument that the increase in grade was arbitrary because the Assessor did not inspect the interior of their house.
    An arbitrary or capricious act is “one which is willful and unreasonable, without consideration and in disregard of facts or circumstances in the case.” State Bd. of Tax Comm’rs v. South Shore Marina, 422 N.E.2d 723, 727 (Ind. Ct. App. 1981). See also Bailey Seed Farms, Inc. v. State Bd. of Tax Comm’rs, 542 N.E.2d 1389, 1391 (Ind. Tax Ct. 1989) (stating that an act is arbitrary or capricious when it “is without some basis which would lead a reasonable and honest person to the same conclusion as the agency”). The Lindemanns contend that the increase in grade was arbitrary because the Assessor did not inspect the interior of their house from the time that the PTABOA had previously assessed the grade of their house at a B-1 for the 1995 tax year. See footnote
    Given the specific circumstances in this case and in light of the consideration of the interior components of a residential property that the regulations require when assessing grade, an inspection of the interior of the house is usually necessary before determining the grade of a dwelling. See Ind. Admin. Code tit. 50, rr. 2.2-7-6, (grade specification table), 2.2-7-7.1(g)(1)-(8). Here, however, the Lindemanns’ contention is without merit because an interior inspection of their house was conducted. Although the Assessor did not inspect the interior of the Lindemanns’ house, the PTABOA did and found that “many features were observed along with the design to substantiate the [B+2] grade.” See footnote (Admin. R. at 7.) Thus, the PTABOA specifically considered the interior components of the Lindemanns’ house before affirming the B+2 grade. Because the change in the grade of the Lindemanns’ house was not without consideration of the facts or circumstances, the Court finds that it was not arbitrary or capricious. See footnote See South Shore Marina, 422 N.E.2d at 727. The Court, therefore, DENIES the Lindemanns’ motion for summary judgment. See footnote
CONCLUSION

    For the aforementioned reasons, this Court DENIES the Lindemanns’ motion for summary judgment. The Court hereby orders the parties to file a proposed briefing schedule by February 1, 2003.
    SO ORDERED this 12th day of December, 2002.

    _____________________________
        Thomas G. Fisher, Judge
        Indiana Tax Court

Distribution:

Paul F. Lindemann
KRIEG DEVAULT LLP
2800 One Indiana Square
Indianapolis, IN 46204

Steve Carter
Attorney General of Indiana
By: Linda I. Villegas
Deputy Attorney General
Indiana Government Center South, Fifth Floor
402 West Washington Street
Indianapolis, Indiana 46204-2770


Footnote: The legislature abolished the State Board as of December 31, 2001. P.L. 198-2001, § 119(b)(2). Effective January 1, 2002, the legislature created the Department of Local Government Finance (DLGF), Ind. Code § 6-1.1-30-1.1 (West Supp. 2001)(eff. 1-1-02); P.L. 198-2001, § 66, and the Indiana Board of Tax Review (Indiana Board). Ind. Code § 6-1.5-1-3 (West Supp. 2001)(eff. 1-1-02); P.L. 198-2001, § 95.


Footnote: The Lindemanns appealed their assessment to the PTABOA for the 1995 assessment year. The PTABOA, upon a recommendation from the township assessor, determined that the grade of the Lindemanns’ property should be B-1. (See Admin. R. at 106.)


Footnote: Specifically, the PTABOA noted that the Lindemanns’ house had “6 panel wood doors thru-out (sic), good quality carpet in basement with 10’ ceilings, hardwood floors on 1st floor, recessed [lighting], 9’ ceilings, custom baseboard and casing, oak wainscoating (sic), builtins (sic), crown moulding, walkin (sic) marble shower, extensive tray ceiling in dining room, 10’ garage doors, keystones above windows, [and] beaded porch ceiling.” (Admin. R. at 7.)


Footnote: The Court finds it troubling that an assessor would change a grade merely upon the notion that such must be done because of the rest of the neighborhood, especially when the assessor had recommended the lower grade in an appeal of an earlier assessment year. Here, however, such conduct was cured by the fact that the PTABOA did inspect the interior of the subject dwelling.


Footnote: The parties will now be given the opportunity to file briefs and argue whether the Lindemanns met their burden of submitting probative evidence showing that the Indiana Board either improperly gave their house a B+2 grade or improperly denied the house a B-1 grade. See Deer Creek Developers, Ltd. v. Dep’t of Local Gov’t Fin., 769 N.E.2d 259, 265-66 (Ind. Tax Ct. 2002).