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Monday, April 11, 2005
Ind. Decisions - Court of Appeals posts one today; Tax Court posts one
Midwest Mineral, Inc. v. Board of Zoning Appeals (4/11/05 IndCtApp) [Change of Venue]
Hoffman, Senior Judge
* * * On July 14, 2004, the BZA adopted new findings at a public hearing. Those new findings were tendered to the trial court on August 10, 2004. On August 13, 2004, Midwest objected to the newly tendered findings. On August 20, 2004, the trial court denied Midwest’s motion for change of venue from the judge, and accepted the BZA’s new findings of fact. The trial court found the findings to be sufficient to support the BZA’s denial of Midwest’s application.Midwest has appealed alleging that the trial court erred by denying Midwest’s June 2, 2004, motion for change of venue from the judge. The BZA argues that the trial court correctly denied Midwest’s motion because Midwest was entitled to only one change of venue from the judge pursuant to Ind. Trial Rule 76(B). The BZA further argues in the alternative that Midwest is not entitled to a change of venue from the judge pursuant to Ind. Trial Rule 76(C)(3) because the panel of this court in the first appeal, did not remand the matter for a “new trial.” * * *
This case is similar to that decided by our supreme court in State ex rel. Hahn. Although the other panel of this court did not remand the matter for a new trial, what was ordered was in effect a new trial for purposes of determining an issue of law, whether the decision of the BZA was legal. The right to a change of venue from the judge arose anew.
Therefore, the trial court erred by denying Midwest’s June 2, 2004, motion for change of venue from the judge. Because of our determination on this issue, we do not address the additional issue on the merits of this case.
This matter is remanded to the trial court to grant Midwest’s motion for change of venue from the judge and for further proceedings. Reversed and remanded.
RILEY, J., and SHARPNACK, J., concur.
Victoria Enterprises/Worthman Mall v. Department of Local Government Finance (4/8/05 IndTaxCt - NFP) [Real Property Tax]
Fisher, Judge
Victoria Enterprises/Worthman Mall (Victoria) appeals from a final determination of the State Board of Tax Commissioners (State Board) that assessed a portion of Victoria’s improvement as an atrium with a mezzanine for the 1996, 1997, 1998 and 1999 tax years (years at issue). The sole issue before the Court is whether the State Board erred in its assessment. The Court AFFIRMS the State Board’s final determination for the following reasons.
Posted by Marcia Oddi on April 11, 2005 01:56 PM
Posted to Ind. App.Ct. Decisions