Indiana Court Decisions – Nov. 7-19, 2019

7th Circuit Court of Appeals

Nov. 15

Civil Plenary — Employment/Discrimination

Brigid Ford v. Marion County Sheriff’s Office

18-3217

The 7th Circuit Court of Appeals affirmed a grant of summary judgment to the Marion County Sheriff’s Department in an employment discrimination dispute with an ex-deputy who claims she was harassed by co-workers because of her disability.

Brigid Ford sustained nerve damage to her hand after a she was involved in a head-on car accident on the job. She suffered permanent disability to her hand, leaving her unable to carry and properly use a firearm. Ford ultimately accepted a civilian job when she refused to quit, but alleged that her new co-workers harassed her because of her disability.

Additionally, Ford asserted the sheriff’s department would not allow her to work a fixed schedule and requested to be kept on a set schedule of working five days with the same two days out of the office rather than on a rotating schedule. However, a federal jury concluded Ford did not prove that request was a reasonable accommodation. It further concluded that although two of Ford’s co-workers had been harassing her, she hadn’t proved it was linked to her disability.

The 7th Circuit Court of Appeals affirmed the Southern District Court’s decision in Brigid Ford v. Marion County Sheriff’s Office, 18-3217, despite Ford’s assertion that it improperly divided the issues in her case. Specifically, Ford alleged the district court improperly separated different types of Americans with Disabilities Act claims and her evidence about co-worker Vashni Hendricks’ harassment from that of Carol Ladd and Eva Watts.

“The district court here incorrectly divided the harassment claim based on the identities of the harassers rather than the ‘intervening action’ of the Sheriff’s Office, but the court reached the right result,” Circuit Judge David Hamilton wrote for the federal appellate court. “We affirm based on the eighteen-month gap, the departure of Lieutenant (James) Walterman, and the transfer of Ladd and Watts calculated to end their alleged harassment. On the facts of Ford’s case, the court did not err in independently evaluating two distinct claims for a hostile work environment.”

Ford also appealed the partial grant of summary judgment on some of her claims, first that her demotion to visitation clerk was not a reasonable accommodation, but was instead discriminatory and retaliatory.

The 7th Circuit ultimately found that the district court properly granted summary judgment on Ford’s claims stemming from her transfer. The appellate panel reasoned that it had trouble imagining how a demotion that qualifies as a reasonable accommodation required by the ADA can simultaneously constitute disability discrimination or retaliation prohibited by the ADA. It likewise found the district court did not err by granting summary judgment on Ford’s claim that the sheriff’s office should be held liable for a hostile work environment created by Hendricks based on disability, nor on Ford’s discrimination and retaliation claims stemming from numerous decisions not to promote her.

The 7th Circuit lastly found unpersuasive Ford’s arguments that her remaining claims should be remanded for a new trial because of evidentiary rulings by the district judge and an ‘unnecessary’ jury instruction, concluding that the district court acted within its discretion and that the instruction’s correct statement of the law did not unfairly affect the outcome of the trial.

Indiana Supreme Court

Nov. 12

Juvenile — Disposition/Ineffective Assistance of Counsel

A.M. v. State of Indiana

19S-JV-603

Indiana Supreme Court justices have affirmed the placement of a teenage boy in the Indiana Department of Correction, finding he was not provided ineffective assistance of counsel.

Justices on Nov. 12 addressed unsettled law concerning the standard to evaluate claims made by children alleging ineffective assistance of counsel. Specifically addressing the case of A.M. v. State of Indiana, 19S-JV-603, the high court considered counsel’s overall performance and determined whether that performance ensured the child received a fundamentally fair hearing resulting in a disposition serving his best interests.

In that case, A.M. was placed in the DOC in 2017 at the age of 15 as the culmination of a “long history with the juvenile justice system,” the Supreme Court wrote. By the age of 10, A.M. had committed three delinquent acts amounting to Class D felony battery with bodily injury if committed by an adult. He was later expelled from an alternative schooling program for “fail[ing] to comply” and was placed on supervised probation after beating up another teen who was subsequently sent to the hospital.

A.M. continued to fail to abide by his probation terms by threatening his family, skipping school, missing mental health evaluations and being a suspect in the burglary of a fellow classmate’s home, among other things. Out of concern for A.M. and the community’s safety, the teen was recommended for placement in the DOC. He was committed to the DOC for an indeterminate period, which A.M. appealed based on ineffective assistance of counsel.

The Indiana Court of Appeals unanimously denied his claim, with Judge Terry Crone requesting that the high court address whether “the two-pronged Strickland test or the due process test is the proper test to be used in analyzing the effectiveness of juvenile’s counsel during the various phases of delinquency proceedings.”

The Supreme Court ultimately affirmed the COA’s opinion after granting transfer to the case, concluding that a due process standard governs A.M.’s claim that he received ineffective assistance.

First, it concluded that A.M.’s right to effective counsel comes from the Fourteenth Amendment’s due process guarantee and must therefore be evaluated under a due process, and not a standard under Strickland v. Washington, 466 U.S. (1984).

“Though parallels exist between Indiana’s criminal and juvenile systems, there remain significant differences separating the two, not least of which are the constitutional origins for criminal and juvenile rights,” Justice Christopher Goff wrote for the majority. “Since a juvenile’s constitutional rights arise from the Fourteenth Amendment’s due process guarantee, they must be applied and assessed through a due process lens.”

The majority noted, however, that it does not see the Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989) standard as a suitable test for A.M. or other similarly situated juveniles’ ineffective assistance of counsel claims. It instead drew on Baker v. Marion Cty. Office of Family and Children, 810 N.E.2d 1035, 1039–41 (Ind. 2004) to establish an ineffective assistance of counsel standard for such cases.

“In assessing fundamental fairness, a court should not focus on what the child’s lawyer might or might not have done to better represent the child,” Goff wrote. “Rather, the court should consider ‘whether the lawyer’s overall performance was so defective that the … court cannot say with confidence that the’ juvenile court imposed a disposition modification consistent with the best interests of the child.”

Considering A.M.’s counsel’s overall performance, the justices could not find that he performed so defectively that they lost confidence in the juvenile court’s disposition modification. The majority therefore concluded that A.M.’s counsel helped ensure he received a fundamentally fair hearing where the court reached an accurate disposition that furthered his best interests.

Writing in a separate concurring judgement, Justice Geoffrey Slaughter objected to the majority’s “Baum-plus” standard, noting he finds no meaningful difference between that and the Strickland standard. Rather, the justice noted he would apply the Baum standard and affirm the trial court.

“Prejudice under Strickland is straightforward — the result of the proceeding likely would have been different had counsel performed capably. But prejudice under the Court’s ‘Baum-plus’ standard is unclear and prompts more questions than answers … .”

Indiana Court of Appeals

Nov. 13

Civil Plenary — Attorney Fees/Summary Judgment

Susan Sockrider v. Burt, Blee, Dixon, Sutton, and Bloom, LLP

19A-PL-1155

The Indiana Court of Appeals has affirmed judgment for a Fort Wayne law firm after one of its clients refused to pay attorney fees she found to be unreasonable.

Before his unexpected death, Susan Sockrider’s husband requested to cancel his life insurance policy and be paid its surrender value. The process of canceling the policy had already commenced when he died one month later, leaving Sockrider as the sole beneficiary under the policy.

Sockrider was soon thereafter denied her claim for the entirety of the $100,000 death benefits under the policy, with Lincoln Financial instead paying her the surrender value of $1,737.87. Sockrider was prompted to contact Burt Blee Dixon Sutton & Bloom LLP after several unsuccessful attempts to procure the full policy amount to discuss bringing a potential claim against Lincoln.

After a consultation, however, Burt Blee noted that Sockrider’s claim was properly denied and that she would be likely unsuccessful and “have a substantial bill from [Burt Blee] to show for it.” Instead, the law firm agreed to accept the case on a contingency basis, “despite the inherent risk of zero recovery.” It thus issued Sockrider with a fee agreement and declined to reduce its standard one-third contingency fee upon her request, which she ultimately signed.

In the process of Burt Blee’s initiation of litigation on behalf of Sockrider, Lincoln informed it had reassessed its prior denial and decided to disburse the insurance proceeds to Sockrider in full, plus interest. Although Burt Blee recovered the funds, Sockrider refused to pay attorney fees the law firm was requesting, arguing the amount was unreasonable.

Burt Blee sued Sockrider, alleging she breached the agreement the parties had signed and demanded payment of the $33,635 contingency fee. The Allen Circuit Court ultimately ruled in the firm’s favor, finding Sockrider was bound to pay the contingency fee regardless of whether the monies were filed prior to Burt Blee’s filing suit.

In Susan Sockrider v. Burt, Blee, Dixon, Sutton, and Bloom, LLP, 19A-PL-1155, Sockrider argued there was a genuine issue of material fact that the fee agreement entered into between the parties unambiguously allowed Burt Blee to charge a contingency fee for a matter that did not involve litigation.

“Though we agree with Sockrider that Burt Blee’s Fee Agreement largely contemplates litigation — and the prospect of litigation was precisely the reason a contingency fee agreement was suggested — the Fee Agreement unambiguously indicates that the contingency fee is due upon recovery of any amount regardless of whether, as here, it was achieved prior to filing suit,” Judge Patricia Riley wrote for the appellate court.

The appellate court also found that contingency fee as negotiated between the parties to be reasonable and concluded that due to her failure to raise the affirmative defenses in her response to Burt Blee’s motion for summary judgment, Sockrider waived the issue for the appellate court’s review.

Criminal — Motion to Suppress/New Crime Exception

State of Indiana v. Julio Serrano

19A-CR-305

The grant of a motion to suppress an allegedly unconstitutional traffic stop has been overturned, though the Indiana Court of Appeals did not reach the constitutional question in reversing the trial court.

In State of Indiana v. Julio Serrano, 19A-CR-305, former Brownsburg Police Officer Corey Spears was responding to a residential armed robbery dispatch in February 2017 when he radioed in about a white Cadillac Escalade leaving the neighborhood at a high rate of speed. Though he told another officer at the scene that he wasn’t sure if the Cadillac was involved in the robbery, he did not convey his doubts to dispatch.

Later, when Detective Dirk Fentz saw a white Cadillac stopped at a traffic light, he pulled up “nose-to-nose” with the vehicle and ordered the occupants to show their hands. Fentz later testified that while officers tried to get the occupants to unlock the vehicle, Julio Serrano exited out the back, pushed through two officers and began to run away while pulling a gun.

Serrano then turned to face the officers while holding the gun, so Fentz shot him. He was taken to Eskenazi Hospital and later arrested, and his firearm was recovered.

Serrano was then charged with Level 4 felony unlawful possession of a firearm by a serious violent offender and was alleged to be a habitual offender. He responded with a motion to suppress, arguing the traffic stop was unconstitutional and relying on testimony from officers, including Fentz, to support his theory that there was no evidence proving the Cadillac was involved in the alleged robbery.

The Hendricks Superior Court initially denied the motion, but later granted a supplemental motion to suppress after seeing Spears’ bodycam footage, which did not include footage of the Cadillac. The trial court denied the state’s subsequent motion to correct error, but the Indiana Court of Appeals reversed the grant of the supplemental motion.

But in writing for the unanimous panel, Judge Melissa May said the appellate court “need not decide whether the traffic stop was constitutional because, regardless, Serrano’s conduct after the stop was sufficiently distinguishable and attenuated from the stop to be purged of whatever taint may have accompanied the seizure of the Cadillac.”

Specifically, May said the new crime exception under the attenuation doctrine applies here because of Serrano’s actions when exiting the vehicle and fleeing from officers.

“The officers did not expect Serrano to push them, run from them, and draw a gun,” May said. “Serrano’s decision to do all these things after the stop constitutes evidence of a new crime that is separate and distinguishable from whatever taint accompanies the stop of the Cadillac.”

The case was remanded for further proceedings.

Criminal — Diversion Revocation/Right to Counsel

James Schenke v. State of Indiana

19A-CR-733

A man who asked for legal counsel that was not appointed in his misdemeanor invasion of privacy case will get a new trial, the Indiana Court of Appeals ruled.

James Schenke was charged with the Class A misdemeanor count in November 2016 after he was found within eyesight of his wife’s house despite a no-contact order. He was with a friend who was collecting some of Schenke’s personal items from his wife’s house, according to the record.

About a year later, the state agreed to pretrial diversion. But after Schenke failed to meet the terms of diversion, the state moved to revoke his pretrial diversion agreement in December 2018. Prior to a bench trial, Schenke filed a motion for indigent counsel, but when he failed to show up for a hearing, Tippecanoe Superior Judge Michael A. Morrissey denied the motion, and Schenke proceeded pro se, though he continued to request appointed defense counsel even during the bench trial.

The Indiana Court of Appeals affirmed the revocation of Schenke’s diversion agreement but reversed his conviction and remanded for a new trial in James Schenke v. State of Indiana, 19A-CR-733.

“The trial court never engaged in a discussion with Schenke about the perils of self-representation, nor did it conduct an inquiry as to Schenke’s indigency. Instead, it repeatedly ignored his requests for counsel and ignored the many red flags indicating that Schenke was out of his depth and needed (and wanted) an attorney,” Judge John Baker wrote for the Court.

“Under these circumstances, we agree with the State that Schenke did not knowingly, voluntarily, and intelligently waive his right to counsel — he did not waive his right to counsel at all. Therefore, we reverse and remand for a new trial.”
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Nov. 14

Domestic Relation — Divorce/Intent to Defraud

Raul Hernandez-Velazquez, et al. v. Sondra Hernandez

18A-DR-3109

A man who conveyed several properties he owned to a family member shortly before divorcing his wife intended to defraud her, the Indiana Court of Appeals affirmed.

Raul Hernandez-Velazquez and his wife, Sondra Hernandez, were married for nearly 20 years before Sondra filed for divorce in 2014. Before that, the couple owned Sorani Construction and Remodeling, which purchased foreclosed homes, fixed them up and either rented or sold them. Hernandez-Velazquez and his brother, Modesto Hernandez, purchased and renovated several homes in the following years. Most of the properties were titled in Hernandez-Velazquez’s name and Sondra was typically responsible for collecting rent and/or paying property taxes.

Before Sondra filed for divorce, Hernandez-Velazquez conveyed the all the properties titled in his name for $10 to Elizabeth Barcaleta Santiago, Modesto’s significant other. Sondra was then informed by her husband that Santiago would be assuming the role of collecting rent and paying the taxes.

A special judge appointed to resolve the property-division issue during the divorce proceedings concluded that the Uniform Fraudulent Transfer Act applied to Hernandez-Velazquez’s conveyance of the properties to Santiago and that Sondra was a creditor under UFTA. Sondra was therefore assigned four of the properties and the appellants were thus ordered to execute quitclaims to convey the home’s respective titles to her.

The appellants appealed, arguing that the trial court erred by setting aside the property conveyances to Santiago pursuant to UFTA because Sondra was not a creditor and there was no evidence of an intent to defraud.The Indiana Court of Appeals disagreed, however, first finding ample evidence to show both Sondra and her husband contributed to the purchases of the properties, that the majority of the properties were initially titled and insured in either of their names, and that the property taxes were paid by the couple’s business, among other things.

“All of this supports the trial court’s finding that the properties are part of the marital estate for purposes of Husband and Wife’s divorce, and therefore Wife is a creditor under UFTA because she has a claim to the properties,” Chief Judge Nancy Vaidik wrote for the appellate panel.

It further found at least five badges of fraud codified by the UFTA to prove that Hernandez-Velazquez did intend to defraud his wife.

“First, the record shows that Husband transferred the properties to Elizabeth approximately one month before Wife filed for divorce and when the parties’ relationship had already begun to deteriorate. Second, the transfer of these properties greatly reduced the marital estate because the rental properties were substantially all of the family’s assets,” the panel wrote.

“Third, there is evidence that Husband would retain some benefits over the rental properties. That is, Husband, Modesto, and Elizabeth, would continue to renovate and manage the properties and collect rent from tenants. Fourth, Husband transferred the properties to Elizabeth for little or no consideration. That is, he transferred all the properties to Elizabeth for ten dollars,” the panel continued. “Finally, the transfer of these properties from Husband to Elizabeth was effectively a transfer between family members … All of this together constitutes a pattern of fraudulent intent.”

It therefore affirmed in Raul Hernandez-Velazquez, et al. v. Sondra Hernandez, 18A-DR-3109.

Post-Conviction — Ineffective Assistance of Counsel

Donald A. Pierce v. State of Indiana

18A-PC-2848

A divided panel of the Indiana Court of Appeals upheld denial of a convicted child molester’s post-conviction relief petition, but a dissenting judge assailed the representation by a defense attorney who he said “took a fatalistic approach to the trial and wholly failed to challenge any testimony by any State witness.”

Donald A. Pierce was convicted in 2010 of multiple counts of child molesting — charges that were affirmed in 2011 on direct appeal to the Indiana Supreme Court, which cut Pierce’s sentence from 134 years to 80 years in prison in a 3-2 decision.

Pierce then filed a petition in Crawford Circuit Court for post-conviction relief, alleging ineffective assistance of counsel. Among other things, he claimed counsel in his trial failed to adequately investigate potential defenses and failed to object to “drumbeat” repetition testimony, depriving him of effective representation.

Judge Edward Najam and Melissa May affirmed the denial of post-conviction relief. They held there was no reversible error in the adequacy of the post-conviction court’s findings and conclusions; that defense counsel made a strategic decision not to counter alleged “drumbeat” evidence; that Pierce’s defense opened the door to evidence of child abuse syndrome by questioning the victim’s credibility and that continuing objections could have harmed the defense; that medical records not sought by defense counsel were merely cumulative of other evidence; that defense counsel had no conflict of interest; and that the defense counsel’s failure to call certain witnesses was strategic because those witnesses would not have assisted Pierce’s defense.

Dissenting Judge L. Mark Bailey agreed with Najam and May regarding Pierce’s claims regarding conflict of interest, medical records and failure to call certain witnesses. However, he leveled sharp criticism of counsel’s performance that he said met Pierce’s burden to show he received ineffective assistance of counsel.

“I am convinced that trial counsel rendered ineffective assistance in that she simply took a fatalistic approach to the trial and wholly failed to challenge any testimony by any State witness, including drumbeat repetition of (victim) J.W.’s allegations and child abuse syndrome testimony,” Bailey wrote in a 12-page dissent.

“In my view, counsel sat idly by and permitted the State to conduct its case in the sequence and manner that could most efficiently and expediently bring about a conviction. … She did so without lodging a single objection that would focus the trial court’s attention upon Pierce’s right, under the law, to promote preservation of the presumption of his innocence. And counsel apparently did not understand, as evidenced by her testimony at the post-conviction hearing, that she should — or even could — object.

“… Here, the onslaught of ‘vouchsafing’ testimony prior to J.W.’s testimony eroded Pierce’s presumption of innocence. Then the potential harm to Pierce was exacerbated when inconsistencies in J.W.’s out-of-court statements were addressed in the context of child abuse syndrome evidence. These events sufficiently undermine confidence in the verdict rendered. … Excluding hearsay, we are left with J.W.’s testimony and a nurse’s testimony that she could not document injury.”

Had counsel been effective, “We cannot know to a certainty, or precise mathematical probability, what the jury would have done,” Bailey wrote. But he concluded that in his view, Pierce met his burden by a preponderance of the evidence that he was entitled to post-conviction relief.

The case is Donald A. Pierce v. State of Indiana, 18A-PC-2848.

Indiana Tax Court

Nov. 7

Tax — Charitable, Educational Exemptions

McClain Museum, Inc. v. Madison County Assessor

18T-TA-1

The Indiana Tax Court has affirmed an Indiana Board of Tax Review’s final determination that a Madison County nonprofit military museum does not qualify for an educational purposes exemption, though the court did find a charitable exemption is applicable.

The McClain Museum, located in Anderson, exhibits military equipment used by the United States Armed Forces in various wars ranging from World War I through Desert Storm. Founded in 1989, the nonprofit was granted an exemption from federal income taxes pursuant to IRC § 501(c)(3).

Veterans, schools, scouting, police and other groups interested in military communications were given guided tours of the museum during the 2014 tax year. The museum also offered free admission to the general public that year to remain economically accessible for its visitors.

To offset some of its operating costs, the museum rented out a portion of its storage area to individuals to store their boats, rented part of its space for wedding receptions and parties, and permitted the storage of Yellow Pages books for Yellowbook Inc. Only one museum staff member was employed and paid, apart from a bookkeeper, leaving the museum to otherwise rely on volunteers.

When the museum applied for an educational purposes exemption in May 2014, the Madison County Property Tax Assessment Board of Appeals denied its application, prompting the museum to appeal to the Indiana Board of Tax Review. The museum claimed entitlement to both the educational and charitable purposes exemptions, but the board ultimately concluded the real property did not qualify for either.

In McClain Museum, Inc. v. Madison County Assessor, 18T-TA-1, the Indiana Tax Court affirmed in part the board’s final determination as to the educational purposes exemption.

“While there is no doubt that the public is educated and its knowledge enhanced about military history through the Museum’s displays, the Museum has nonetheless made no showing … that it conducts educational services, training, or coursework related to that topic,” Judge Martha Blood Wentworth wrote. “Moreover, the Museum has made no showing that the state’s burden to provide military history education is relieved or would be increased if it were not for the Museum.”

However, the Tax Court reversed the board’s determination that the museum’s property did not qualify for a charitable purposes exemption, finding the evidence contained in the administrative record supported its finding that the museum’s property is eligible for a 75% exemption based on the space that was not predominantly used for charitable purposes.

The Tax Court similarly noted that the board’s rationale failed to properly interpret and ultimately apply the terms “charity” and “human want.” It concluded the museum’s ownership, occupation and use of its property conveys “a gift for the benefit of the general public that is charitable in nature.”

The case was thus remanded to the Indiana board to ensure the Madison County Assessor complies with the Tax Court’s instructions.
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Nov. 13

Tax — Summary Judgment/Refund

Crown Property Group, LLC v. Indiana Department of State Revenue, and Adam J. Krupp

18T-TA-27

The Indiana Tax Court has granted summary judgment to a real estate company after finding it was entitled to a refund of money levied out of its bank account by the Indiana State Department of Revenue.

Indianapolis real estate company Crown Property Group, LLC was involved in a years-long dispute with the Indiana Department of Revenue that began when it was issued a proposed assessment for more than $2,000 of withholding tax, interest, and penalties for the third quarter of 2009.

Crown, which had not employed or paid wages to any individuals since that time, had stopped filing tax withholding returns in 2009 but failed to close its withholding registration account with the department until several years later. When Crown attempted to close the account in April 2015, the department did not process the submitted form because it lacked supporting documentation and was not notarized.

By June 2015, the proposed assessment turned into a demand notice seeking $2,500, which subsequently turned into a tax warrant when the amount still went unpaid. The department’s collection agent next filed a duplicate tax warrant with the Marion County Circuit Court Clerk for more than $3,000 of withholding tax, interest, penalties, collection fees, clerk’s costs, and damages.

In June 2016, the collection agent levied $1,811.30 from Crown’s bank account, prompting Crown to request a refund because its Form BC-100 shows that it “was no longer required to be registered for [withholding] tax as of December 31, 2009.” An additional Form BC-100 was filed and the account was ultimately closed at the end of 2017.

Crown was denied its request for a refund, which it protested was wrongfully denied because the department had no authority to collect the withholding tax, among other things. Both parties ultimately filed cross-motions for summary judgment, but the Indiana Tax Court granted Crown’s motion in Crown Property Group, LLC v. Indiana Department of State Revenue, and Adam J. Krupp, 18T-TA-27.

The Tax Court noted that the main question was whether the department’s mailing of Crown’s withholding notifications to Crown’s former attorney-in-fact Summit PM’s Pennsylvania Street address was reasonably calculated to apprise Crown of the notifications.

“Even though Summit continued to serve as Crown’s property manager until 2013, the designated evidence does not establish that Summit was authorized to represent Crown in tax matters beyond the 2006 through 2009 tax years,” Judge Martha Blood Wentworth wrote. “Furthermore, the Department has not identified any legal authority that allowed it to satisfy the statutory notice requirements by sending the Withholding Notifications to an entity that was not authorized to receive them.”

The Tax Court therefore found unpersuasive the department’s arguments that Crown had failed to inform that it had no employees or income and that Summit was no longer its attorney-in-fact by 2013, and that Crown filed a defective Form BC-100 rather than paying the withholding tax or filing a protest.

“… [F]or purposes of the notice provisions under Indiana Code §§ 6-8.1-5-1(b) and 6-8.1-8-2(a)(1) and (c), Crown did not need to update its mailing address with the Department or advise the Department that it had no employees in 2009 or that Summit’s tenure as its property manager concluded in 2013. Instead, the Department simply needed to review its own records,” Wentworth wrote.

“Second, even if actual notice were required, which it is not, the designated evidence does not reasonably indicate that Crown received actual notice of the Demand Notice or the Tax Warrant … Third, the designated evidence does not indicate exactly what prompted the Department to select one mailing address over another,” the Tax Court wrote.

It therefore concluded that the withholding notifications were void because they did not meet the statutory requirements. The Tax Court additionally ordered the department to refund Crown an amount of attorney fees equal to its filing fee as damages.•