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
INDIANA TAX COURT
PAUL F. and JANET R. LINDEMANN, )
v. ) Cause No. 49T10-0204-TA-39
J. BARRY WOOD, ASSESSOR OF )
WASHINGTON TOWNSHIP, MARION )
ORDER ON PETITIONERS MOTION FOR SUMMARY JUDGMENT
NOT FOR PUBLICATION
December 12, 2002
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
issued its final determination, affirming the PTABOAs 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 Commrs, 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
The Lindemanns argue that the increase in their houses 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 Commrs, 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
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 Commrs 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 Commrs, 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.
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.
(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 South Shore Marina, 422 N.E.2d
at 727. The Court, therefore, DENIES the Lindemanns motion for summary judgment.
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
Paul F. Lindemann
KRIEG DEVAULT LLP
2800 One Indiana Square
Indianapolis, IN 46204
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
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,
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.)
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.)
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. Dept of Local Govt Fin., 769 N.E.2d 259, 265-66 (Ind. Tax Ct.