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Verizon contends that this appeal must be dismissed because the Assessor initially served a copy of the Petition and summons on a non-party law firm whose attorneys were not the attorneys of record in the Tax Court rather than serving Verizon directly. (See Hr’g Tr. at 6, 14-15.) Verizon further asserts that the Assessors’ appeal is untimely because in serving the summons on a non-party, it failed to toll the applicable statute of limitations for appeal and take all requisite steps to initiate the appeal within the statutorily prescribed period. (See Hr’g Tr. at 6-19; Resp’t Reply Mem. Supp. Mot. Dismiss (“Resp’t Reply Br.”) at 1-7; Resp’t Br. at 5-9.)
In general, when a petitioner appeals a final determination of the Indiana Board to the Tax Court, there can be no attorney of record for the respondent until after its attorney enters an appearance. See Ind. Trial Rule 3.1(B). Therefore, at the commencement of this action, Hasler and Bennett were not Verizon’s “attorneys of record,” as that term is used in Trial Rule 5(B). Moreover, the plain language of Tax Court Rule 3(D) does not provide for an exclusive means of service, but merely a safe harbor. Accordingly, because the petition and summons must be served together, the manner of service of the summons is applicable to that of the petition. T.R. 4(E); see also Rumfelt v. Himes, 438 N.E.2d 980, 983-84 (Ind. 1982) (explaining that courts are to construe Indiana’s rules of trial procedure harmoniously whenever possible).
Indiana Trial Rule 4.6, similar to Tax Court Rule 3(D), also provides a non-exclusive method of service on an organization that, when followed, constitutes proper service. The Assessor claims that because it caused the Petition and summons to be served on Verizon’s attorneys as its agents, it perfected service in accordance with Trial Rule 4.6. (See Petrs’ Br. at 4-6.) While the Court is not persuaded by the Assessors’ claim, its technical failure to comply with the trial rules does not necessitate the dismissal of this appeal given that the plain language of Trial Rule 4.6 suggests that it too is a safe harbor. See T.R. 4.6(A)(1) (stating that service on an organization may be made on an executive officer or an agent who is appointed or deemed by law to have been appointed to receive service); see also, e.g., Beyer v. State, 280 N.E.2d 604, 606 (Ind. 1972); Board of Com’rs of Daviess Cnty. v. State ex rel. Gilley, 128 N.E. 596, 597 (1920) (both explaining that “may” is generally understood to be permissive, not mandatory). In fact, Indiana Trial Rule 4.15(F) instructs that no summons or service of process shall be set aside if either is “reasonably calculated” to inform the person to be served of the impending action before him. T.R. 4.15(F). Reasonably calculated to inform “is identical to the ‘elementary and fundamental requirement of due process . . . notice reasonably calculated, under all the circumstances, to apprise[.]’” Glennar Mercury-Lincoln, Inc. v. Riley, 338 N.E.2d 670, 675 (Ind. Ct. App. 1975) (citations omitted).
Here, Hasler and Bennett had a long history of representing Verizon with the Assessor. On October 25, 2005, Verizon executed a power of attorney granting Hasler and Bennett broad representative authority to litigate both real and personal property tax matters for the 2005 and 2006 tax years in any administrative proceeding. (See Resp’t Reply Br., Ex. E-1.) During the next five years, those attorneys and the Assessor disputed the accuracy of Verizon’s 2005 personal property assessment at the administrative level, the same year and issue in this appeal. Furthermore, even after the administrative process culminated in the issuance of a final determination, Verizon’s attorneys continued to represent Verizon in communications with the Assessors’ attorney by telephone and email. In fact, the Assessors’ attorney told Verizon’s attorneys that Verizon intended to appeal the final determination, but neither attorney indicated that they would not be representing Verizon in the Tax Court. (See Petrs’ Br. at 3 n.2, Ex. 1 ¶¶ 5-6.) Accordingly, the Assessors’ counsel caused two copies of the Petition and a summons to be issued to Bingham McHale c/o Hasler and Bennett (which Hasler accepted) under a reasonable belief that they would remain Verizon’s attorneys
Because the Petition and summons were not served on Verizon directly, the question is whether the manner of service on the attorneys who represented Verizon throughout the administrative proceedings was reasonably calculated to inform Verizon of the initiation of this original tax appeal. See Gourley v. L.Y., 657 N.E.2d 448, 450 (Ind. Ct. App. 1995) (“The minimal requirements of due process require only that notice be served in a manner reasonably calculated to inform the defendant of the pending action”) (citation omitted), trans. denied. The facts show that the Petition and summons both named Verizon as the respondent, that both documents were directed to Verizon’s attorneys who had a long history of representing Verizon on this same property tax matter, and that Verizon’s attorneys continued to represent Verizon after the administrative proceedings concluded. (See Petrs’ Br. at 4; see generally Petrs’ Pet.) Moreover, Verizon’s attorneys have never alleged that the manner of service harmed or prejudiced their client. (See Hr’g Tr. at 17-19.) Indeed, Verizon concedes that it had timely knowledge of this original tax appeal, which suggests that the Assessors’ manner of service, while not made on Verizon directly, was likely to inform. Accordingly, the Court holds that the specific facts of this case indicate the manner of service was reasonably calculated to inform Verizon of the initiation of this original tax appeal.
This decision is consistent with the Court’s “long-standing policy that cases should be decided on the merits and justice should not be defeated by [procedural] technicalities.” See Miller Beach Invs., LLC v. Dep’t of Local Gov’t Fin., 848 N.E.2d 1190, 1194 n.3 (Ind. Tax Ct. 2006). Moreover, the Indiana Supreme Court has stated:
Although our procedural rules are extremely important, it must be kept in mind that they are merely a means for achieving the ultimate end of orderly and speedy justice. [Thus, w]e must examine our technical rules closely when it appears that invoking them would defeat justice; otherwise we become slaves to the technicalities themselves and they acquire the position of being the ends instead of the means. This is e[s]pecially true in [this] case . . . where we prejudice no one [in] allowing the . . . [case to proceed] at this point.
American States Ins. Co. v. State ex rel. Jennings, 283 N.E.2d 529, 531 (Ind. 1972). Indeed, the Court’s “‘function is to serve the truth and to decide legal issues, not clear [its] dockets by utilization of unnecessarily narrow technical interpretations’” of the procedural rules. Id. at 531-32 (citation omitted). Therefore, the Court DENIES Verizon’s Motion to Dismiss.
http://www.in.gov/judiciary/opinions/pdf/04051301mbw.pdf
