*1 Aldridges entity In our the fact that provides only mental pool, one thus- dictating each swim; where camp- have been made aware of the individual must (2) only or tree-trimming person chooses to on ground’s policy not one swim a create particular day. Similarly, private duty no expressly a situation where State assured park personnel, was created allegedly when Aldridges that it would act on their be- informed Aldridges campground’s protect falling half to them from trees tree-trimming policy, assigned and then them Therefore, campsite.1 the State did campsite exclusive access to 104. private duty Aldridges protect owe the a falling them from limbs. tree Additionally, the fact that charged Aldridges park a fee enter the Also, Aldridges the fact that campground” “modern area did not only campers assigned campsite were the give private rise to a duty. See Cain v. Bd. more, private a could without create (1986) County Ind.App., Comm’rs Cass of of true, duty. If that were campsite then each (fee charged to enter assigned by the State would constitute its park). county private own individual oasis A duties. trial court is affirmed. private duty through explicit is created as a governmental entity surances that will act KIRSCH, JJ„ FRIEDLANDER and injured or has on party’s acted behalf. concur. Therefore, question a whether private duty exists does not turn on the
number relying of individuals on other general
wise assurance the existence of
protective-type Also, private services.
duty simply govern not created because a entity, W. KESSEN and extent, may mental Thomas some small Kessen, Appellants- C. protective- have induced reliance those Respondents, type by directing services or limiting the Rather, conduct individuals involved. explicit specific it is the nature of the Graft, Dennis D. GRAFT and Alieta A. assurance, corresponding justifiable Appellees-Petitioners. reliance, and detrimental which is determina 57A03-9709-CV-309. No. tive. Appeals Court of of Indiana. example, general For the otherwise 4,May 1998. duty governmental which exists enti ty employs lifeguards public pools to monitor automatically
is not pri into a transformed duty simply
vate govern- because: indicating no "Q. 1. There is evidence in the camping your record You've been with husband Aldridges, deciding camp- to switch to during—at years twenty this time for for-— that regarding site ever relied on assurances married, you right? were is that fact, protection falling trees. the evi- A. Yes. at 570. Record clearly Aldridges specifical- dence shows that any- you And he's never mentioned to "Q. ly requested campsite relocation to wooded thing danger camping about the Rodney's During order to have shade. cross- dead tree? examination, following exchanges place: took A. No. "Q. anybody you any Does have to tell 0kay. Q. you It never occurred to check camp these sites to look out for dead trees? you good inspecting around while A. No. place put tent and determine whether or Q. something you That's because it's any of the trees were dead? you right knew that should do. Is that sir? looking A. We were for shade.” Record at Well, you A. know for sure it's dead.” Rec- 570. ord at 352. gave following testimony during Bernadine her cross examination: *2 Muntz, LaGrange, Appel-
Richard K. lants-Respondents. Hawk, Smith, Hawk, Jeffrey Wayne K. P. at another Fort
David address. Sometime Chiekedantz, Haynie, Gallmeyer Fort between December 1993 and & allegedly destroyed improve- all of Wayne, Appellees-Petitioners. ments on real estate and cut down all *3 the trees. OPINION 7, 1994, On June the Kessens filed suit
DARDEN, Judge.
against
the
for dam-
THE
STATEMENT.
CASE
OF
ages.
point,
apparently
At some
the Grafts
George
Kessen appeal
W. and Thomas C.
filed a
summary judgment,
motion for
and on
19, 1996,
the trial court’s dismissal of their
trial
the
court found that the
issuing
a
order
tax deed to Dennis and
properly
Grafts “did not
obtain constitution-
Kessens_”
ally
Alieta Graft.
adequate service on the
(R. 81). The court
therefore denied the
We reverse.
summary judgment
Grafts’
motion and de-
clared
tax
the
deed issued
them to be void.
ISSUE
County
The court
the
ordered
Noble
Auditor
dismissing
Whether the trial court
erred
to “rescind the tax
regarding
sales certificate
untimely.
the Kessens’
upon payment
the Real Estate
by the Kes-
sens of
required
the
sums
for re-
FACTS
(R. 81).
demption.”
23, 1991, attorney
On October
Dennis
The Grafts filed motions to correct error
wife, Alieta, purchased
Graft and his
several
for
judgment,
Septem-
relief from
and on
contiguous tracts of lakefront real
estate
30, 1996,
granted
ber
the court
the Grafts’
County
a
Noble
tax sale. At the time of motions,
19,1996,
vacated its June
order and
sale,
property
was owned
brothers
for
dismissed the Kessens’ suit
lack of sub-
1992,
George and Thomas Kessen.
In June
ject
support
In
of its
redemption
sent
notices to the
decision, the court cited Ind.Code 6-1.1-25-
Kessens at a Florida address which was list-
4.6(h),
provides
which
“tax
...
deed
County
ed
the Kessens’ Noble
tax state-
except by appeal
incontestable
from the or-
post
ment. The
office
returned
notices
county
directing
der
the court
auditor
to the Grafts as undeliverable.
deed,”
to issue
tax
Kiskowski
September 1992,
In
peti-
the Grafts filed a
O’Hara,
(Ind.Ct.App.1993),
dismissing appeal. GARRARD, Judge, dissenting. 60(B), According to T.R. when a except Void when it’s voida- party files seeking a motion relief ble. If the tax sale deed this case were grounds on the the judgment *5 void I difficulty would have little concurring void, is the motion —or in ap the in by the result majority. reached the But peal of the of the issuance tax deed—“shall unfortunately yet accurately, Judge be filed within a reasonable time.” The de explained Sullivan for the court in v. Trook termination of what constitutes Co., Lafayette Bank and Trust 581 N.E.2d time varies with the circumstances of each 941, (Ind.Ct.App.1991) denied, 944 trans. Levin, case. Levin v. 645 N.E.2d 604 appellate decisions often seem to use “void” (Ind.1994). to question Relevant the of time and “voidable” interchangeably re- without prejudice liness is party opposing to the the technical, gard important, for the distinc- moving motion and the party’s basis the meanings. tions in their If an instrument delay. Id. judgment is it is of no effect whatever subject and is to at any collateral attack time. the Kessens first received no hand, if On the other an judg- tice of the tax instrument or sale deed in December voidable, merely ment is its letter from the Six deficiencies Grafts. months subject later, direct, be waived and it to only is in June the Kessens filed suit collateral, jurisdiction against attack. A lack of quiet the Grafts to title and for dam later, of ages. particular jurisdiction the case or of years Two lack the trial court found (at person least the tax where the lack of deed be because the invalid jurisdiction appear does not on did not the face of adequate obtain service. judgment) the judgment in a filed motions to results that is correct error and for relief hand, merely judgment, later, voidable. Id. On the other three months the lacking trial court rendered vacated June 1996 order and general subject jurisdiction matter is void. subject dismissed the suit lack days later, Nine the Kessens said, With that much turn we should atten- filed an of the order the tax tion to the providing statutes for the issuance deed. considering of tax deeds. Without the decid- First, prejudice we find no the willing Grafts. I am accept ed cases seriatim They put See Levin. conjecture early were notice that the that at least in some of the were challenging decisions, Kessens the issuance of the tax deed the court meant that defi- tax deed actually the Kessens filed cient legisla- deeds were void. against quiet has, suit them however, and for title dam- ture in the current version Second, ages. the basis for the authorizing Kessens’ the statutes tax sales and “delay” that deeds, is the trial court clearly position rule on taken the that errone- their June 1994 ously merely action until June 1996. issued deeds are voidable. Then, September 1996, necessary the trial court That the implication va- is of Indiana reasons, 6-l.l-25-4.6(b). that er than one three- enumerated §
Code except by appeal again the action within three are incontestable commence tax deeds (or directing issu- years of the court of the first last date from the order failure addition, gov- while the under the statute of limitations available ance of deed.' action). O’Hara, erning original While Kessens court in Kiskowski denied, action, plaintiffs in they trans. did not the 1994 (Ind.Ct.App.1993) stand required appealing it in the expressly question, address the defendants shoes procedure ordering to be followed. deed. legislative pur- Giving due deference to so, peculiar Even under the facts of this analysis in pose applying our traditional 60(B) pur- arguable case it that for TR differentiating things and void- between void poses long pendency original able, appears to me that the tax deed promptness in commencing suit here is voidable. issue “appeal” upon original the dismissal of qualifies as a “reasonable time” even suit alleged It follows then defects § though Indiana Code 34-1-2-8 does they may be waived. I conclude that however, argument apply. The does have been. demonstrate discretion abuse I Initially, find that the Kessens are not year than a and a half court. More so equity. to the That entitled aid elapsed of the tax deed between issuance requires equity vigilant because aids commencement of Kessens’ At knew clean hands. minimum Furthermore, throughout action. subject question deed, period entire after of the tax issuance taxes, had real estate moved required only the statute the deed could had Florida address to which notices through appeal.1 be attacked The court *6 past they in been sent and that could have determined discre- well within fact, any real paying estate taxes .on delay tion that was not reasonable Thus, they have no question. say and we cannot that abuse discretion particular standing equity. court found. was committed when trial so pro- spells out no Because the tax statute Secondly, in to be relief order entitled to recognizes, cedure for it that 60(B) present under T.R. the claimant must court, Stores, relying upon Ball Inc. v. evidence of a defense. admissible meritorious Comm’rs, Bd. Ind. majority, I am such Unlike the unable find N.E.2d determined that the Trial in an which has been vacated evidence order 60(B), Rules, specifically applies. T.R. in a suit which was want of dismissed appears approved to have Kiskowski disagree. approach, I do not delay point Relying The trial court that One final bears mention. found commencing pursuant upon supreme court in the direct attack a' statement (Ind.1996) 60(B) R.S., great. The tax T.R. was'too deed was K.S. (DeBruler, argue “appeal” dissenting) that issued November 1992. The J. 60(B)(6) judgments was 1996. since T.R. refers to commenced October proceed- they are it is not available to attack assert nevertheless commenced pursuant ings I time that are voidable. do within 60(B)(6) Journey’s was the intent T.R. because the Account believe that court’s K.S. Statute, 34-1-2-8, brought § An under T.R. 60 a direct Indiana- Code should attack because, permit although attack them to treat the 1996 belated, origi- part continuation it nevertheless is action to 60(B)(6) June, proceeding. had commenced nal If T.R. not avail- 1994. correctly point judgments, able to then it is out that Indiana attack voidable Code is, § plaintiffs. superfluous applies truly 34-1-2-8 void because That permits collaterally plaintiff any time. whose action for oth- can be attacked- fails 83-1989, 1. See P.L. Sec. 15. 60(B)(6) I would construe T.R. apply affirm the Therefore, trial court. I respect- voidable,
judgments fully that are either void or dissent. In sum I would find the deed voidable
rather than I void. While would find that
attacking the deed through T.R. 60 prop-
er, I would find that no abuse of discretion
has been established in the determination
that the motion was too filed late. I would