author: VAIDIK, Judge.

text:
    KOHL’S INDIANA, L.P., and Kohl’s Department Store, Inc., Appellant-Plaintiff, v. Dennis OWENS, et al., Appellees-Defendants.
    No. 82A05-1203-PL-103.
    Court of Appeals of Indiana.
    Nov. 16, 2012.

      Mark D. Gerth, Kightlinger & Gray, LLP, Indianapolis, IN, Attorney for Appellant.
    Keith W. Vonderahe, Robert L. Burkart, Ziemer Stayman Weitzel & Shoulders, LLP, Evansville, IN, Attorneys for Appel-lee Board of Commissioners of Vander-burgh County.
    Joseph H. Harrison, Jr., Massey Law Offices, Evansville, IN, Attorney for Ap-pellee Evansville-Vanderburgh County Area Plan Commission.
   OPINION

VAIDIK, Judge.

Case Summary

Kohl’s Indiana, L.P., and Kohl’s Department Stores, Inc., (collectively “Kohl’s”) appeal the trial court’s grant of summary judgment in favor of the Evansville-Van-derburgh County Area Plan Commission (“Plan Commission”) and the Board of Commissioners of Vanderburgh County (“Board of Commissioners”) on Kohl’s equitable claims for contribution and unjust enrichment for expenses that Kohl’s incurred when its developer failed to complete construction of a new Kohl’s Department Store on the west side of Evansville. We conclude that the trial court properly entered summary judgment in favor of the Plan Commission for both claims because the Commission never accepted a common obligation to complete the project, never entered into any sort of agreement with Kohl’s concerning the project, and there is no evidence that a benefit was conferred upon the Plan Commission at the Commission’s express or implied consent. We also conclude that the trial court properly entered summary judgment in favor of the Board of Commissioners for both claims because Kohl’s and the Board entered into an agreement which required Kohl’s to complete the public-infrastructure improvements at Kohl’s expense, and when the rights of the parties are controlled by an express contract, recovery cannot be based on a theory implied in law. Finally, we conclude that the Board of Commissioners is not entitled to appellate attorney’s fees. We therefore affirm the trial court.

Facts and Procedural History

In May 2004, the Plan Commission approved a primary plat application concerning the proposed construction of a Kohl’s Department Store in the Carpentier Creek Pavilion Subdivision on the west side of Evansville. The approval of the project was conditioned upon the developer, Dennis Owens, posting a letter of credit to ensure the proper and complete development of roads, culverts, sanitary sewer work, and other infrastructure improvements required within the subdivision pursuant to Section 16.08.070 of the Vanderburgh County Subdivision Code, Appellant’s App. p. 815-16, and Indiana Code section 36-7-4-709.

In January 2005, Owens obtained four letters of credit from Fifth Third Bank naming the Plan Commission as beneficiary. The letters of credit totaled $538,454.78:

1. Letter of Credit # CIS403248 $47,284.65
Off-Site Road and Drainage Improvements within City of Evansville
2. Letter of Credit # CIS403249 $230,245.31
Off-Site Road and Drainage Improvements in Vanderburgh County
3. Letter of Credit # CIS403250 $206,762.46
City of Evansville Sanitary Sewer Extension
4.Letter of Credit # CIS403251 $54,162.36
City of Evansville Waterline Extension

Id. at 332.

Thereafter, in February 2005, Kohl’s and Owens entered into an Operation and Easement Agreement whereby Owens agreed to build the Kohl’s Department Store in Carpentier Creek Pavilion. Kohl’s and Owens also entered into a Site Development Agreement, which provided that Kohl’s had the right to complete Owens’ work if he failed to do so and charge Owens all expenses incurred.

In September 2005, Kohl’s and the Board of Commissioners entered into an agreement (“road-improvement agreement”) whereby the Board of Commissioners agreed to the closure of Rosenberger Avenue, which was a busy road, for a limited time in order to allow Kohl’s to improve and reconstruct it. Id. at 144-45. In the agreement, Kohl’s agreed to complete the project in accordance with all plans and specifications approved by various governmental entities. Id. at 144. The agreement provides that should Kohl’s fail to complete the project in accordance with all approved plans and specifications, the Board of Commissioners will take all necessary legal actions to recoup its expenses in completing the project, including drawing on the funds in the letters of credit and filing a lawsuit against Kohl’s. Id. Kohl’s and the Board of Commissioners also entered into an indemnity agreement whereby Kohl’s agreed to defend, indemnify, and hold the Board of Commissioners harmless against claims relating to the improvement and reconstruction of Rosen-berger Avenue, and Kohl’s named Vander-burgh County as an additional insured under a commercial general liability policy. Id. at 146-47. Notably, the Plan Commission was not a party to these agreements.

Owens failed to complete the project, so Kohl’s completed the project, which included improvements to storm sewers and septic sewers under Rosenberger Avenue and Hogue Road as well as road work to Ro-senberger Avenue and Hogue Road.

In February 2006, Kohl’s filed a complaint against numerous defendants, including Owens, the Plan Commission, and Fifth Third Bank in which it sought reimbursement for the expenses it incurred in completing Owens’ work. Id. at 1. Kohl’s made three claims against the Plan Commission. In Count VI, Kohl’s asked the trial court to order the Plan Commission to draw on the letters of credit and to assign the proceeds from the letters of credit to Kohl’s. In Count VII, Kohl’s asserted a claim based on the doctrine of contribution. And in Count VIII, Kohl’s sought payment of the proceeds of the letters of credit based upon the doctrine of implied contract and/or unjust enrichment.

Fifth Third Bank intervened as a defendant in the counts against the Plan Commission and sought summary judgment. Although the trial court entered summary judgment in favor of Kohl’s, finding that the letters of credit should be treated as performance bonds and that Kohl’s was entitled to make a claim against the proceeds of the letters of credit as a third-party beneficiary, we reversed on appeal. Specifically, we found that the letters of credit were not performance bonds and that Kohl’s was not a third-party beneficiary of the letters of credit issued by Fifth Third Bank. Fifth Third Bank v. Kohl’s Indiana, L.P., 918 N.E.2d 371, 376, 378 (Ind.Ct.App.2009).

In May 2010, Kohl’s filed an amended complaint in which it added the Board of Commissioners as a defendant to Counts VII (contribution) and VIII (implied contract and/or unjust enrichment). Kohl’s then dismissed, with prejudice, Count VI against the Plan Commission based upon this Court’s opinion.

All of the public-infrastructure improvements that were required as a condition of approval by the Plan Commission for the project were completed, and the Plan Commission released the four letters of credit posted by Owens between July and October 2010. Appellant’s App. p. 332-33. Because the public-infrastructure improvements were completed and accepted, there was no need for the Plan Commission to draft upon the letters of credit posted by Owens. Id. at 333.

In August 2010, the Board of Commissioners and the Plan Commission individually moved for summary judgment on Counts VII and VIII of Kohl’s amended complaint. Kohl’s filed a cross motion for summary judgment. Following a hearing, the trial court entered summary judgment in favor of the Board of Commissioners and the Plan Commission and denied Kohl’s cross motion for summary judgment. Id. at 593, 594.

Kohl’s now appeals.

Discussion and Decision

Kohl’s argues that the trial court erred in entering summary judgment in favor of the Board of Commissioners and the Plan Commission on its equitable claims for contribution and implied contract/unjust enrichment.

In reviewing an appeal of a motion-for-summary-judgment ruling, we apply the same standard applicable to the trial court. Presbytery of Ohio Valley, Inc. v. OPC, Inc., 973 N.E.2d 1099, 1110 (Ind.2012), reh’g denied. Summary judgment is appropriate where the designated evidence “shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). Review is limited to those facts designated to the trial court, T.R. 56(H), and “[a]ll facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party.” Presbytery of Ohio Valley, 973 N.E.2d at 1110 (quotation omitted). The fact that each party sought summary judgment does not alter our analysis. Id. Rather, we consider each motion separately construing the facts most favorably to the non-moving party in each instance. Id.

I. Contribution

Kohl’s first contends that the trial court erred in entering summary judgment in favor of the Board of Commissioners and the Plan Commission on Count VII, its claim for contribution. Kohl’s argues that when Owens failed to complete the public-infrastructure improvements to the project, it had no obligation to complete them, but it did so to ensure that it could open its new store. Nevertheless, Kohl’s argues that both the Board of Commissioners and the Plan Commission were obligated by statute and local ordinance to step in and complete the public-infrastructure improvements. Accordingly, Kohl’s seeks contribution from both the Board of Commissioners and the Plan Commission for these expenses.

Contribution involves the partial reimbursement of one who has discharged a common liability. Balvich v. Spicer, 894 N.E.2d 235, 243 (Ind.Ct.App.2008). The “ ‘doctrine of contribution rests on the principle that where parties stand in equal right, equality of burden becomes equity.’ ” Id. at 245 (quoting Cook v. Cook, 92 Ind. 398, 399 (1884)). The right of contribution is based upon natural justice, and “it applies to any relation, including that of joint contractors, where equity between the parties is equality of burden, and one of them discharges more than his share of the common obligation.” Id. (quotation omitted).

According to Williston on Contracts, the rule is that

[U]nless otherwise agreed, a person who has discharged more than his proportionate share of a duty owed by himself and another as to which, between the two, neither had a prior duty of performance, is entitled to contribution from the other, except where the payor is barred by the wrongful nature of his conduct.

12 Richard A. Lord, Williston on Contracts § 36.14 (4th ed. 1999) (citing Restatement (First) of Restitution § 81 (1937)). The doctrine of contribution rests on principles of equity and natural justice, not contract. Id. “It is an attempt by equity to distribute equally among those who have a common obligation, the burden of performing that obligation.” Id.

A. Plan Commission

Kohl’s points out that pursuant to statute and local ordinance, the Plan Commission required Owens to post letters of credit to ensure the proper and complete development of roads, culverts, sanitary sewer work, and other infrastructure improvements related to the construction of the new Kohl’s Department Store in Evansville. Kohl’s claims that the purpose of allowing plan commissions to require letters of credit to cover infrastructure costs from developers requesting plat approval is to ensure that in the event a developer fails to complete the infrastructure, the amount secured by the letter of credit can be used to complete the work. Kohl’s asserts that the legislature did not intend for a plan commission to sit idly by if a developer fails to complete the work.

But that is not what happened here. When Owens failed to complete the project, Kohl’s stepped in and completed the project so that it could open the store. Although the Plan Commission was the beneficiary of the letters of credit taken out by Owens and could have drawn on the letters of credit if the public-infrastructure improvements were not completed (the public-infrastructure improvements were in fact completed, and the Plan Commission released the letters of credit in 2010), the Plan Commission never accepted a common obligation to complete the project, which the doctrine of contribution requires. In fact, the Plan Commission did not enter into any sort of agreement with Kohl’s concerning the project and did not ask Kohl’s to complete the project when Owens failed to do so. Because the Plan Commission did not have a common duty to complete the project, the trial court properly entered summary judgment in favor of the Plan Commission on Kohl’s contribution claim.

B. Board of Commissioners

Kohl’s next argues that the Board of Commissioners, “as the executive for Vanderburgh County, had a duty to construct, design, repair and maintain ... road and sewer improvements.” Appellant’s Br. p. 8 (footnote omitted). The Board of Commissioners responds that while it may have a duty to public users to repair and maintain the completed public-infrastructure improvements, it agreed with Kohl’s that Kohl’s would be liable for completing and paying for all public-infrastructure improvements associated with building the new Kohl’s Department Store in Evansville. As support, the Board of Commissioners identifies the road-improvement agreement, which provides as follows:

WHEREAS, [Kohl’s] is required to improve and reconstruct Rosenberger Avenue, hereinafter referred to as the “Project”, as a part of its obligations in conjunction with the development of Carpentier Creek Pavilion commercial subdivision, and
WHEREAS, for [Kohl’s] to perform and complete the Project, the [Board of Commissioners] must approve [Kohl’s] doing work in the right of way for Ro-senberger Avenue and the closure of Rosenberger as necessary to complete the Project; and
WHEREAS, due to high traffic volumes on Rosenberger Avenue, the [Board of Commissioners] is unwilling to approve such work and such closure except for a limited period of time; and
WHEREAS, the [Board of Commissioners] wishes to establish a penalty to help insure that such work and such closure will only be for a limited period of time.
NOW, THEREFORE, for and in consideration of the premises and the mutual agreements of the parties hereto, one unto the other, the parties hereto do hereby agree as follows:
1. To allow [Kohl’s] to complete the Project, the [Board of Commissioners] will permit [Kohl’s] to work in the right of way for Rosenberger Avenue and to close Rosenberger Avenue for a time period that will not exceed twenty-one (21) consecutive calendar days (“Road Closure Period”) without written approval by the [Board of Commissioners] to extend the Road Closure Period.
2. If [Kohl’s] fails to complete the Project during the Road Closure Period then [Kohl’s] agrees that it shall pag a fine of $2,500.00 per day for each day beyond the Road Closure Period that is required for completion of the Project.
3. [Kohl’s] will complete the Project in accordance with all plans and specifications that have been approved by the [Board of Commissioners], the Vanderburgh County Drainage Board, and all applicable state and federal review agencies.
4. [Kohl’s] acknowledges that its amended plans for the Project have been submitted to the Indiana Department of Environmental Management (“IDEM”) and U.S. Army Corps of Engineers (“Corps”), but written approval of the amended plans has not been received as of the date of this Agreement. The lack of such written approval does not release [Kohl’s] from any of its obligations to complete the Project within the Road Closure Period in conformance with all conditions of the final written approval of the amended plans. The [Board of Commissioners] assumes no responsibility or liability associated with allowing [Kohl’s] to proceed with the Project without the IDEM or Corps approval.
5. [Kohl’s] hereby acknowledges that if it fails to complete the Project in accordance with all approved plans and specifications, the [Board of Commissioners] will take all necessary legal actions needed to recoup all costs the [Board of Commissioners] might incur in conjunction with the [ Board of Commissioner’s] completion of the Project. These actions may include, but will not be limited to, drawing on the funds in the letter of credit held by the Evansville Area Plan Commission for the Project, filing lien(s) on property owned by [Kohl’s], and/or filing a lawsuit against [Kohl’s],

Appellant’s App. p. 144 (emphases added).

Although Kohl’s argues that the road-improvement agreement addresses only closing a public road and not its obligations to complete the public-infrastructure improvements, we do not read the agreement so narrow. First, the agreement addresses “improv[ing]” and “reconstruet[ing]” Rosenberger Avenue, not simply closing it. Id. Second, the agreement says that the improvements and reconstruction must be “in accordance with all plans and specifications that have been approved by the [Board of Commissioners], the Vander-burgh County Drainage Board, and all applicable state and federal review agencies.” Id. Third, the agreement provides that if Kohl’s fails to complete the project in accordance with all approved plans and specifications, the Board of Commissioners will take all necessary legal actions to recoup its expenses in completing the project, including drawing on the funds in the letters of credit. Id. The four letters of credit pertain to off-site road and drainage improvements, sanitary sewer extension, and waterline extension.

Based on the above, we conclude that the road-improvement agreement addresses more than simply closing Rosenberger Avenue; it addresses the reconstruction and improvement of Rosenberger Avenue, which must be done in compliance with all plans and specifications that have been approved by several governmental agencies, including the Drainage Board. It is apparent that reconstructing and improving Rosenberger Avenue involves more than simply repaving this busy road; it also involves drainage, sewer, and water. Moreover, the agreement obligates Kohl’s to pay for these costs and provides that if Kohl’s fails to complete the project, the Board of Commissioners can complete the project and then file a lawsuit against Kohl’s to recoup its expenses. Because there is an agreement between the parties concerning how to allocate the costs, the doctrine of contribution does not apply to this scenario. See 12 Lord, § 36.14 (“[U]nless otherwise agreed, a person who has discharged more than his proportionate share of a duty owed by himself and another as to which, between the two, neither had a prior duty of performance, is entitled to contribution from the other, except where the payor is barred by the wrongful nature of his conduct.” (Emphasis added)). Accordingly, the trial court properly entered summary judgment in favor of the Board of Commissioners on Kohl’s contribution claim.

II. Unjust Enrichment

Kohl’s next contends that the trial court erred in entering summary judgment in favor of the Board of Commissioners and the Plan Commission on Count VIII, its claim for unjust enrichment, which is also referred to as quantum meruit, contract implied in law, constructive contract, or quasi contract. Coppolillo v. Cort, 947 N.E.2d 994, 997 (Ind.Ct.App.2011).

A claim for unjust enrichment is a legal fiction invented by the common-law courts in order to permit a recovery where the circumstances are such that under the law of natural and immutable justice there should be a recovery. Zoeller v. E. Chi Second Century, Inc., 904 N.E.2d 213, 220 (Ind.2009), reh’g denied. “ ‘A person who has been unjustly enriched at the expense of another is required to make restitution to the other.’ ” Id. (quoting Restatement (First) of Restitution § 1 (1937)). To prevail on a claim of unjust enrichment, a plaintiff must establish that a measurable benefit has been conferred on the defendant under such circumstances that the defendant’s retention of the benefit without payment would be unjust. Zoeller, 904 N.E.2d at 220; Bayh v. Sonnenburg, 573 N.E.2d 398, 408 (Ind.1991), reh’g denied. Indiana courts articulate three elements for this claim: (1) a benefit conferred upon another at the express or implied consent of such other party; (2) allowing the other party to retain the benefit without restitution would be unjust; and (3) the plaintiff expected payment. Woodruff v. Ind. Family & Social Servs. Admin., 964 N.E.2d 784, 791 (Ind.2012), cert. denied.

When the rights of the parties are controlled by an express contract, recovery cannot be based on a theory implied in law. Zoeller, 904 N.E.2d at 221. The existence of an express contract precludes a claim for unjust enrichment because: (1) a contract provides a remedy at law and (2) as a remnant of chancery procedure a plaintiff may not pursue an equitable remedy when there is a remedy at law. Coppolillo, 947 N.E.2d at 998. However, there are exceptions to this rule. Id. That is, when an express contract does not fully address a subject, a court of equity may impose a remedy to further the ends of justice. Id.

A. Plan Commission

Kohl’s does not make a cogent separate argument as to the Plan Commission and instead focuses its energy on the Board of Commissioners. In any event, there is no evidence that a benefit was conferred upon the Plan Commission at the Commission’s express or implied consent. The Plan Commission did not ask Kohl’s to complete the public-infrastructure improvements nor did the Commission request that any improvements be made for its benefit. Given the Plan Commission’s more limited role, the trial court properly entered summary judgment in favor of the Plan Commission on Kohl’s unjust-enrichment claim.

B. Board of Commissioners

Kohl’s argues that the Board of Commissioners’ interaction with it warrants the imposition of an implied contract for the value of the work it completed on the public-infrastructure improvements. The Board of Commissioners responds that the road-improvement agreement forecloses Kohl’s claim for unjust enrichment.

We agree with the Board of Commissioners that because the rights of the parties were controlled by an express contract, recovery cannot be based on a theory implied in law. See Zoeller, 904 N.E.2d at .221. The road-improvement agreement imposes responsibility on Kohl’s to improve and reconstruct Rosen-berger Avenue as part of its obligations in conjunction with the development of Carpentier Creek Pavilion and specifies that the Board of Commissioners was to have no financial responsibility for these costs. And to the extent that Kohl’s failed to complete the project, the Board of Commissioners could complete the project and pursue all legal actions, including a lawsuit against Kohl’s, to recoup its expenses. Accordingly, the trial court properly entered summary judgment in favor of the Board of Commissioners on Kohl’s unjust-enrichment claim.

III. Appellate Attorney’s Fees

As a final matter, the Board of Commissioners, but not the Plan Commission, requests appellate attorney’s fees according to Indiana Appellate Rule 66(E), which provides that “[t]he Court may assess damages if an appeal ... is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include attorneys’ fees. The Court shall remand the ease for execution.” Our discretion to award attorney’s fees is limited to instances when an appeal is permeated with mer-itlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay. Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind.Ct.App.2003). While Appellate Rule 66(E) permits us to award damages on appeal, we must act with extreme restraint due to the potential chilling effect on the exercise of the right to appeal. Harness v. Schmitt, 924 N.E.2d 162, 168 (Ind.Ct.App.2010).

While we ultimately find no merit to any of Kohl’s arguments, we do not find that its appeal is permeated with meritlessness or any of the other factors that would warrant an award of appellate attorney’s fees. We therefore deny the Board of Commissioners’ request for appellate attorney’s fees.

Affirmed.

MATHIAS, J., and BARNES, J., concur.

      . According to the Plan Commission, it released letter of credit # CIS403251 on July 20, 2010, “due to the completion and acceptance by the Evansville Water & Sewer Utility concerning the water line extension for the Project." Appellant’s App. p. 332. It released letter of credit # CIS403250 on August 2, 2010, "due to the completion and acceptance by the Evansville Water & Sewer Utility concerning the sanitary sewer extension for the project." Id. It released letter of credit # CIS403248 on August 31, 2010, "due to the completion and acceptance by the City of Evansville of the off-site road and drainage improvement located with the City of Evansville with respect to the Project.” Id. at 333. Finally, it released letter of credit # CIS403249 on October 12, 2010, "due to the completion and acceptance by Vander-burgh County of the off-site road and drainage improvements located within Vander-burgh County concerning the Project." Id.

      . As Kohl’s explains in its brief, "the Board [of Commissioners] does not itself draw upon the letters of credit to complete infrastructure. Instead, it requests that the [Plan Commission] do so and turn over the proceeds to the Board [of Commissioners].” Appellant's Br. p. 9 n.2. As we explained in the prior appeal in this case, "each letter of credit requires the [Plan] Commission to present to Fifth Third a signed statement that Dennis Owens has failed to meet statutory and ordinance requirements and/or the stipulations of primary approval with regard to basic improvements.” Fifth Third Bank, 918 N.E.2d at 376 (quotation omitted).

      . The parties also discuss their indemnity agreement, Appellant’s App. p. 146, and argue whether it is a defense to Kohl's claims. We, however, do not find it necessary to reach this issue because the road-improvement agreement provides that if Kohl’s fails to complete the project, the Board of Commissioners will take all necessary legal action to recoup all costs it might incur in completing the project, including filing a lawsuit against Kohl’s. Because the road-improvement agreement authorizes the Board of Commissioners to recoup any costs from Kohl’s, we do not need to address the indemnity agreement or Indianapolis City Market Corp. v. MAV, Inc., 915 N.E.2d 1013 (Ind.Ct.App.2009), which Kohl’s relies upon.

      . Kohl’s argues that the Board of Commissioners, in similar circumstances, has drawn on letters of credit and used those proceeds to complete public-infrastructure improvements. However, the fact that the Board may have drawn on letters of credit in the past is irrelevant because here there is a written agreement defining the parties’ obligations.

      . Kohl’s argues that the road-improvement agreement does not address payment for Kohl’s work; to the contrary, the agreement specifies that the Board of Commissioners has no payment obligation to Kohl’s and that Kohl’s was completing the work as part of its obligations in conjunction with the development of Carpentier Creek Pavilion.


source: Caselaw Access Project

author: BRADFORD, Judge.

license: Public Domain

text:
    Richard THOMAS, Appellant-Petitioner, v. INDIANA BUREAU OF MOTOR VEHICLES, Appellee-Respondent.
    No. 64A03-1204-PL-191.
    Court of Appeals of Indiana.
    Nov. 28, 2012.
    Rehearing Denied Feb. 12, 2013.

      Adam J. Sedia, Rubino, Ruman, Cros-mer & Polen, Dyer, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Elizabeth Rogers, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Approximately three and one-half years after receiving his third qualifying driving conviction within a ten-year period, Richard Thomas received notice from the Indiana Bureau of Motor Vehicles that, pursuant to Indiana Code section 9-30-10-4(b), he qualified as a habitual traffic violator, and, as a result, that his driving privileges would be suspended for a period often years. Thomas requested relief on administrative review. This request was denied. Thomas subsequently filed a petition for judicial review of the Bureau’s determination claiming that the Bureau did not notify him of its determination regarding his status as á habitual traffic violator in a timely fashion. The trial court found against Thomas, concluding that the relevant statutory provisions did not set forth an applicable statute of limitation for imposing habitual traffic violator status, and that it did not have the power to impose any such statute of limitation.

On appeal, Thomas contends that the trial court erred by concluding that the Bureau’s notice regarding his status as a habitual traffic violator was timely. Thomas alternatively claims that even if the notice was timely, the suspension of his driving privileges should be barred by the doctrine of laches. Concluding that the Bureau timely notified Thomas that he qualified as a habitual traffic violator and that the doctrine of laches is inapplicable to the instant matter, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 6, 2001, Thomas was convicted of operating a motor vehicle while intoxicated. On January 3, 2008, Thomas was convicted of reckless driving. On May 13, 2008, Thomas was convicted of operating while intoxicated endangering a person. The May 13, 2008 conviction qualified Thomas as a habitual traffic violator (“HTV”) under Indiana Code section 9-30-10-4(b). On December 23, 2011, the Indiana Bureau of Motor Vehicles (“BMV”) notified Thomas that he qualified as an HTV, and, as a result, that his driving privileges would be suspended for ten years, effective January 12,2012, through January 24, 2022.

Thomas requested an administrative review of the determination that he qualified as an HTV. The BMV conducted an administrative review, after which it affirmed Thomas’s HTV qualification as well as the suspension of his driving privileges. Thomas thereafter filed a petition for judicial review of the BMVs decision. The trial court conducted a hearing on April 9, 2012, after which it denied Thomas’s petition for judicial review. This appeal follows.

DISCUSSION AND DECISION

In reviewing a decision of an administrative agency, we are bound by the same standard of review as the trial court. Hopkins v. Tipton County Health Dep’t, 769 N.E.2d 604, 607 (Ind.Ct.App.2002) (citing Holmes v. Bd. of Zoning Appeals, 634 N.E.2d 522, 524 (Ind.Ct.App.1994)). Judicial review of an administrative decision is limited to whether the agency possessed jurisdiction over the subject matter, whether the decision was made pursuant to the proper procedures, whether the decision was arbitrary and capricious, whether the decision was in violation of any constitutional, statutory, or legal principles, and whether the decision was supported by substantial evidence. Ripley County Bd. of Zoning Appeals v. Rumpke of Ind., Inc., 663 N.E.2d 198, 203 (Ind.Ct.App.1996).

Ind. Bureau of Motor Vehicles v. McNeil, 931 N.E.2d 897, 900 (Ind.Ct.App.2010), trans. denied. Because the issue presented in the instant matter is a question of law, our standard of review is de novo. Hopkins, 769 N.E.2d at 607 (citing Holmes, 634 N.E.2d at 524). We will reverse only if an error of law is demonstrated. Id. (citing Holmes, 634 N.E.2d at 524).

A. Statute of Limitations

Thomas contends that the BMVs notice regarding his driving status and the resulting suspension of his driving privileges was untimely. Thomas argues that a statutory limitation period should apply to determinations by the BMV regarding HTV status. Thomas, however, does not clearly state what statutory limitation period should apply to determinations regarding HTV status. Thomas acknowledges that this court has previously held that the two-year limitation period set forth by Indiana Code section 34-11-2^4 does not apply to BMV determinations regarding HTV status, McNeil, 931 N.E.2d at 902, but argues that the general ten-year limitation period set for by Indiana Code section 34-11-1-2 should not apply. Specifically, Thomas claims that the general ten-year limitation period should not apply because a ten-year delay in notifying one of his status as an HTV and the resulting suspension of his driving privileges transforms the suspension from a regulatory to a punitive measure.

In McNeil, appellant was notified approximately two years after receiving his third qualifying driving conviction that the BMV had determined that he qualified as an HTV, and, as a result, his driving privileges would be suspended for ten years. Id. at 900. Appellant sought judicial review of the BMVs determination, claiming that the two-year statute of limitation that applied to actions for forfeitures should apply to determinations regarding one’s status as an HTV and that the BMV had failed to provide him with timely notice of its determination regarding his HTV status. Id. Upon review, we concluded that “the determination of HTV status and the suspension of one’s driving privileges by the BMV is not an action for ‘a forfeiture of penalty given by statute,’ and the two-year statute of limitations under Indiana Code section 34-11-2-4 does not apply.” Id. at 902. We further concluded that while the appellant raised several policy issues in support of the application of a statute of limitation for determinations made by the BMV, it is for the General Assembly to determine what, if any, statute of limitations applies and “they [had] not deemed to do so thus far.” Id.

It does not appear that the General Assembly has amended Indiana Code section 9-30-10 to include a statute of limitation since our 2010 decision in McNeil. However, the Indiana Supreme Court has recently held that the General Assembly enacted the general ten-year statute of limitation prescribed in Indiana Code section 34-11-1-2 “for the very purpose of supplying a statute of limitation when one has not otherwise been provided by a more specific statutory scheme.” Ind. Spine Group, PC v. Pilot Travel Ctrs., LLC, 959 N.E.2d 789, 794 (Ind.2011) (internal quotation omitted). Accordingly, in light of the Supreme Court’s holding in Indiana Spine Group, we must assume that, until the General Assembly provides otherwise, the general ten-year statute of limitation prescribed in Indiana Code section 34-11-1-2 applies to claims relating to determinations by the BMV regarding HTV status and the suspension of one’s driving privileges.

Thomas additionally argues that even if the general ten-year statute of limitation prescribed in Indiana Code section 34-11-1-2 does apply, the ten-year period should have begun to run from the date of his first qualifying conviction. We disagree. “When a cause of action accrues is generally a question of law for the courts to determine.” Strauser v. Westfield Ins. Co., 827 N.E.2d 1181, 1185 (Ind. Ct.App.2005). “Under Indiana’s discovery-rule, a cause of action accrues, and the statute of limitation begins to run, when a claimant knows or in the exercise of ordinary diligence should have known of the injury.” Pflanz v. Foster, 888 N.E.2d 756, 759 (Ind.2008). Thus, a statute of limitation cannot begin to run until the elements of a cause of action can be shown. See generally id. at 758 (providing that a claimant cannot recover before suffering actual damage).

Indiana Code section 9-30-10-4(b) provides, in relevant part, that “[a] person who has accumulated at least three (8) judgments within a ten (10) year period for any of the [qualifying] violations! singularly or in combination, and not arising out of the same incident, is a habitual violator.” The clear language of Indiana Code section 9-30-10-4(b) states that one does not qualify as an HTV until the individual receives his third qualifying conviction. It would be illogical to begin to run the applicable statute of limitation before one qualifies as an HTV because no loss has occurred. Thomas did not suffer damage, i.e., qualify as an HTV, until he received his third qualifying conviction in a ten-year period. As such, we must conclude that the general ten-year statute of limitation prescribed in Indiana Code section 34 — 11— 1-2 did not begin to run until Thomas qualified as an HTV, ie., the date he “suffered harm” by qualifying as an HTV.

In addition, we are unconvinced by Thomas’s claim that allowing the general ten-year statute of limitation prescribed in Indiana Code section 34-11-1-2 to begin to run on the date the individual qualifies as an HTV under 9 — 30—10—4(b) transforms the penalties one might incur as a result of their status as an HTV from a regulatory to a punitive measure. As we stated in McNeil, it is for the General Assembly, not the judiciary, to decide if a shorter limitations period is appropriate in circumstances like those presented in the instant matter. See McNeil, 931 N.E.2d at 902. The General Assembly has not done so.

B. Doctrine of Laches

Thomas alternatively contends that even if the BMV did provide him with timely notice of his status as an HTV, the ten-year suspension of his driving privileges should be barred by the doctrine of laches. “ ‘The question of laches is one to be determined by the court in the exercise of its sound discretion.’ ” Ind. Real Estate Comm’n v. Ackman, 766 N.E.2d 1269, 1273 (Ind.Ct.App.2002) (quoting Simon v. City of Auburn, Ind., Bd. of Zoning Appeals, 519 N.E.2d 205, 215 (Ind.Ct.App.1988)). “ ‘For a decision to be reversed on appeal, an abuse of discretion must be clearly demonstrated.’” Id. (quoting Simon, 519 N.E.2d at 215). “An abuse of discretion occurs only when the trial court’s conclusion and judgment is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Id. (citing Taylor v. Metro. Dev. Comm’n, 436 N.E.2d 1157 (Ind.Ct.App.1982)).

Laches is an equitable defense that may be raised to stop a person from asserting a claim that he would normally be entitled to assert. Storm, Inc. v. Indiana Dep’t of State Revenue, 663 N.E.2d 552 (Ind. Tax Ct.1996). The rationale behind the doctrine of laches is that a person who, for an unreasonable length of time, has neglected to assert a claim against another waives the right to assert his claim when this delay prejudices the person against whom he would assert it. Id. We acknowledge that equitable defenses, such as laches, typically may not be asserted against the government when it acts in its sovereign capacity to protect the public welfare. See U.S. v. Wedzeb, 809 F.Supp. 646 (S.D.Ind.1992), Harbour Town Associates, Ltd. v. City of Noblesville, 540 N.E.2d 1283 (Ind.Ct.App.1989) (holding that the doctrine of laches is never applicable to a municipality in enforcing its ordinances because of public policy interests).

Ackman, 766 N.E.2d at 1273. However, while we have concluded that the doctrine should not be permitted to frustrate the enforcement of a valid regulation where government acts to protect the public welfare except for in the clearest and most compelling circumstances, we recognize that “[ujnder certain conditions, where extreme unfairness is shown, a court may apply equitable principles against the government.” Id. (citing U.S. v. Lindberg Corp., 882 F.2d 1158 (7th Cir.1989)). “Extreme unfairness occurs where the public interest would be threatened by the government’s conduct.” Id. (citing Hannon v. Metro. Dev. Comm’n of Marion Cnty., 685 N.E.2d 1075 (Ind.Ct.App.1997)).

In arguing that the doctrine of laches should apply to the instant matter, Thomas claims that a ten-year suspension of his driving privileges would result in extreme unfairness because in the years since his last qualifying conviction, he has “altered his behavior to effectively render himself a safe driver.” Appellant’s Br. p. 16. However, we are unconvinced by Thomas’s self-serving statement regarding his belief that he has altered his behavior in a manner such to render him a “safe driver,” and conclude that it falls far short of demonstrating that the public interest would be threatened by the BMV’s conduct in the instant matter. See Ackman, 766 N.E.2d at 1273 (again providing that extreme unfairness occurs where the public interest would be threatened by the government’s conduct). Thomas’s qualifying convictions include convictions for operating a vehicle while intoxicated, reckless driving, and operating a vehicle while intoxicated endangering a person. Despite Thomas’s claim to the contrary, we believe that the public interest would likely be served, not threatened, by the ten-year suspension of Thomas’s driving privileges. Because the extremely limited circumstances which would allow for its application are not present in this case, we conclude that the doctrine of laches is inapplicable to the instant matter.

The judgment of the trial court is affirmed.

ROBB, C.J., and BAKER, J., concur.

      . The qualifying judgments include: (1) operation of a vehicle while intoxicated: (2) operation of a vehicle with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per one 100 milliliters of the blood or 210 liters of the breath; (3) operating a motor vehicle while the person's license is suspended or revoked; (4) operating a motor vehicle without ever having obtained a license to do so; (5) reckless driving; (6) criminal recklessness involving the operation of a motor vehicle; (7) drag racing or engaging in a speed contest in violation of law; and (8) any felony under an Indiana motor vehicle statute or any felony in the commission of which a motor vehicle is used.


author:
BAILEY, Judge.
      VAIDIK, Judge,

text:
    In re the Matter of the ADOPTION OF Minor Children: C.B.M. and C.R.M. C.A.B., Appellant-Natural Mother, v. JD.M. and K.L.M., Appellees-Adoptive Parents.
    No. 37A03-1204-AD-149.
    Court of Appeals of Indiana.
    Nov. 30, 2012.

      Mark L. Callaway, Rensselaer, IN, Attorney for Appellant.
    Charles P. Rice, Boveri Murphy Rice, LLP, South Bend, IN, Attorney for Appel-lees J.D.M. and K.L.M.
    Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for the State of Indiana.
   OPINION

BAILEY, Judge.

Case Summary

C.A.B.’s (“Birth Mother”) parental rights as to C.B.M. and C.R.M. (“the Children”) were terminated by the Jasper Circuit Court (“termination court”). During the pendency of Birth Mother’s appeal of the termination order, J.D.M. and K.L.M. (“Adoptive Parents”) sought to adopt the Children. The Jasper County Department of Child Services (“DCS”) consented to Adoptive Parents’ request, even though Birth Mother’s appeal remained pending. The Jasper Superior Court (“adoption court”) granted the adoption petition, also while Birth Mother’s appeal remained pending.

This Court reversed the termination order, after which Birth Mother sought to set aside the adoption decree. In the course of these proceedings, Birth Mother raised issues concerning the constitutionality of Indiana’s adoption statutes, and thus the Office of the Attorney General (“the State”) entered an appearance and provided briefing in the matter. The adoption court ultimately denied Birth Mother’s petition to set aside the adoption decree, and she now appeals that decision.

We reverse and remand for further proceedings.

Issues

Birth Mother raises several issues for our review, but we find one issue disposi-tive: whether DCS’s decision to consent to the Children’s adoption without notice to Birth Mother during the pendency of her appeal of the termination order was arbitrary and capricious, and thereby deprived Birth Mother of her due process rights under the Indiana and United States Constitutions.

Facts and Procedural History

On January 28, 2008, the termination court ordered Birth Mother’s parental rights to Children terminated. Birth Mother appealed the termination order. On September 29, 2008, in a published opinion, this Court reversed the termination order and held that there was insufficient evidence that termination of Birth Mother’s parental rights was in Children’s best interests. See Moore v. Jasper Cnty. Dep’t of Child Servs., 894 N.E.2d 218 (Ind. Ct.App.2008).

On May 12, 2008, during the pendency of Birth Mother’s appeal of the termination order, Adoptive Parents filed their Petition to Adopt the Children. The adoption court granted the petition on July 31, 2008-also during the pendency of Birth Mother’s appeal of the termination order.

On January 15, 2009, also in the adoption court, Birth Mother filed her Verified Petition to Set Aside Judgment of Adoption, which alleged that the termination order was void because of this Court’s decision of September 29, 2008, and this in turn rendered the adoption decree void. On February 11, 2009, Adoptive Parents filed their Memorandum opposing Birth Mother’s Verified Petition.

On July 29, 2009, Birth Mother moved for summary judgment and entry of a declaratory judgment, raising for the first time her Due Process Clause-based challenge to the adoption statutory scheme.

On April 13, 2010, in an apparent effort to comply with Indiana’s Uniform Declaratory Judgment Act, Birth Mother provided written notice of her motion for summary judgment to the Office of the Indiana Attorney General. On May 26, 2010, Birth Mother moved for entry of a default judgment against the State as to the constitutionality of the adoption statutes as applied in her case. On June 7, 2010, the State filed its response to Birth Mother’s motion for default judgment, arguing that entry of judgment would be erroneous because the State had not been designated as a party to the action nor had yet decided whether to exercise its statutory right to be heard in the case.

On August 31, 2010, Birth Mother, Adoptive Parents, and the State appeared for a hearing on Birth Mother’s motion for summary judgment. After this, numerous supplemental materials were submitted concerning Birth Mother’s claims, including the State’s memorandum concerning the constitutional claims, filed November 9, 2010, and Birth Mother’s responsive memorandum, filed January 4, 2011.

On December 27, 2011, the adoption court denied Birth Mother’s motion for summary judgment and her petition to set aside the adoption. In the order, the adoption court concluded that Birth Mother failed to properly preserve her rights to challenge the adoption when she did not seek a stay of the termination order. The adoption court did not address Birth Mother’s constitutional claims.

On January 26, 2012, Birth Mother filed her motion to correct error. The State filed its response to the motion on February 28, 2012. On March 2, 2012, the adoption court denied the motion to correct error.

This appeal followed.

Discussion and Decision

Standard of Review

Birth Mother’s challenge to the adoption comes as a motion for relief from judgment under Trial Rule 60(B), which we ordinarily review for an abuse of discretion. Rice v. Comm’r, Ind. Dep’t of Envtl. Mgmt, 782 N.E.2d 1000, 1003 (Ind.Ct.App.2003). The parties agree on the facts of the case, and dispute only questions of law related to the constitutionality and interpretation of certain statutory provisions. In such cases, we review the trial court’s decision de novo. Goodson v. Carlson, 888 N.E.2d 217, 220 (Ind.Ct.App.2008) (reviewing de novo questions of due process and personal jurisdiction). We therefore review Mother’s appeal de novo.

Whether Birth Mother’s Challenge to the Adoption is precluded under Trial Ride 60(B)

Birth Mother contends that the adoption decree was void because this Court reversed the termination order, and thus the adoption court lacked authority to grant the adoption. Adoptive Parents argue that because the termination order was merely voidable, the adoption decree itself was not void and thus Birth Mother’s challenge to the adoption decree was not timely-

Trial Rule 60(B)(6), provides that “[o]n motion and upon such terms as are just the court may relieve a party ... from a judgment, including a judgment by default, for the following reasons: ... the judgment is void.” Judgments are void ab initio “where the trial court lacks authority to act.” Kitchen v. Kitchen, 953 N.E.2d 646, 651 (Ind.Ct.App.2011) (citing Beanblossom v. State, 637 N.E.2d 1345, 1349 (Ind.Ct.App.1994)). Where personal jurisdiction was lacking — that is, where imposition of judgment amounted to a violation of due process — our Supreme Court has held that “a judgment that is void for lack of personal jurisdiction may be collaterally attacked at any time and that the ‘reasonable time’ limitation under Rule 60(B)(6) means no time limit.” Stidham, 698 N.E.2d at 1156.

Whether a judgment is void or voidable is “no mere semantic quibble.” Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind.1998). Where a judgment is void it is “ ‘from its inception ... a complete nullity and without legal effect.’” Id. (quoting 46 Am.Jur.2d Judgments § 31 (1994)). “By contrast, a voidable judgment ‘is not a nullity, and is capable of confirmation or ratification. Until superseded, reversed, or vacated it is binding, enforceable, and has all the ordinary attributes and consequences of a valid judgment.’ ” Id. (quoting 46 Am.Jur.2d Judgments § 30 (1994)). Based upon this distinction, our Supreme Court concluded that where a trial court lacked personal jurisdiction over an essential party to an action, the trial court’s judgment was void ab initio and subject to collateral attack. Id. at 1156.

It is clear that the termination order was merely voidable, as this Court did not declare the order void, but instead reversed the order for insufficient evidence. It was thus capable of being corrected and was not void. See id. at 1154. We therefore conclude that the reversed termination order does not itself render the adoption decree void. Yet because we reach a conclusion today that the adoption decree is void on different grounds, we now turn to the merits of Birth Mother’s appeal.

Construction of the Adoption and Termination Statutes

Birth Mother contends that the statutory scheme, which permits the adoption of children whose parents’ appeal of a court-ordered termination of parental rights as to those children remains pending, is unconstitutional as applied in her case. Where a party challenges the constitutionality of a statute, we review the trial court’s decision de novo. Lock v. State, 971 N.E.2d 71, 74 (Ind.2012). We are not a legislature, however, and we do not “ ‘substitute our convictions as to the desirability or wisdom of legislation for those of our elected representatives.’ ” Id. (quoting State v. Downey, 476 N.E.2d 121, 122 (Ind.1985)). We presume statutes to be constitutional, and the burden rests with the party challenging the statute “to prove otherwise.” Id. Further,

[i]f a statute has two reasonable interpretations, one constitutional and the other not, we will choose the interpretation that will uphold the constitutionality of the statute. Id. We do not presume that the General Assembly violated the constitution unless the unambiguous language of the statute so mandates. Id. This Court should “nullify a statute on constitutional grounds only where such result is clearly rational and necessary.” Bd. of Comm’rs of the County of Howard v. Kokomo City Plan Comm’n, 263 Ind. 282, 330 N.E.2d 92, 95 (1975).

Sims v. United States Fid. & Guar. Co., 782 N.E.2d 345, 349 (Ind.2003).

Thus, even in the face of ambiguity, if we may properly interpret the statutory scheme in a manner that renders it constitutional, we may not hold the scheme unconstitutional. We turn now to examine the applicable provisions of the adoption and termination of parental rights statutes.

Indiana’s adoption statutes require that a petitioner who seeks to adopt another’s child must provide notice to and obtain consent from the child’s parents, or otherwise demonstrate that such notice or consent is unnecessary. See I.C. §§ 31-19-2.5-1 to -5 and 31-19-10-1 & -1.2. There are numerous exceptions to both the notice and consent requirements, however, and the statutory provisions at issue in this case largely cut off the natural parents of a child from any involvement in the adoption process after court-ordered termination of parental rights. Thus, “[n]otice of the pendency of the adoption proceedings does not have to be given to ... a person whose parental rights have been terminated before the entry of a final decree of adoption.” I.C. § 31-19-2.5-4(4). Moreover, a trial court “may hear and grant a petition for adoption even if an appeal of a decision regarding the termination of a parent-child relationship is pending.” I.C. § 31-19-11-6.

The statutes allow for a limited exception to this:

[i]f a person whose parental rights are terminated by the entry of an adoption decree challenges the adoption decree not more than the later of:
(1) six (6) months after the entry of an adoption decree; or
(2) one (1) year after the adoptive parents obtain custody of the child;
the court shall sustain the adoption decree unless the person challenging the adoption decree establishes, by clear and convincing evidence, that modifying or setting aside the adoption decree is in the child’s best interests.

I.C. § 31-19-14-2 (emphasis added).

Where a petitioner establishes or statute provides that notice of an adoption proceeding is not required, the petitioner need not obtain consent to the adoption from the parties who would otherwise be entitled to notice of the proceedings. I.C. §§ 31-19-9-8 & 31-19-10-1.2. Where a prior court order terminated an individual’s parental rights and a child is in the care of the State, the State through a local office of DCS must consent to the adoption unless the adoptive parents can prove by clear and convincing evidence that such consent is not required. I.C. §§ 31 — 19— 10-0.5, 31-19-9-l(a)(3), 31-19-9-8(a)(l) & 31-19-10-1.2(d); In re Adoption of H.L.W., Jr., 931 N.E.2d 400, 408 (Ind.Ct. App.2010).

There is no statutory provision that sets forth criteria based upon which DCS must determine whether to grant its consent to an adoption. Thus, whether to consent to a child’s adoption is a matter within DCS’s discretion, and the trial court must exercise its discretion to determine whether a prospective adoptive parent’s adoption of a child is in the child’s best interest. This is so even during the pen-dency of an appeal terminating a parent’s rights. I.C. § 31-19-11-6.

That is not to say that there is no constitutional requirement of notice separate from the provisions of the statutes. Rather, the statutes do not by their own language require notice and consent, leaving it to the courts to construe the statute in light of the totality of the statutory scheme and constitutional due process requirements. Because the adoption statutes do not require a due process deprivation, however, we cannot conclude that they are unconstitutional.

Due Process Requirements for Notice of Adoption after Court-Ordered Termination of Parental Rights

In this case, DCS was the only party common to both Birth Mother’s appeal of the termination order and Adoptive Parents’ petition for adoption. Yet DCS consented to the Adoptive Parents’ request, knowing that Birth Mother’s appeal remained pending throughout and beyond the duration of the adoption proceedings. There is no indication that DCS made known to this Court that it had consented to the adoption during the pendency of Birth Mother’s appeal of the termination order. This Court reversed that order on September 29, 2008 — approximately 9 months after the adoption decree. It was only that termination order that made DCS the necessary party to the adoption proceedings, rather than Birth Mother.

Longstanding common-law and statutory principles provide for judicial relief from arbitrary and capricious agency actions that “directly and substantially affect the lives and property of the public.” A.B. v. State, 949 N.E.2d 1204, 1218 (Ind.2011) (quoting State ex rel. Smitherman v. Davis, 238 Ind. 563, 569, 151 N.E.2d 495, 498 (1958)). The Indiana Administrative Orders and Proceedings Act (“AOPA”) affords “minimum procedural rights and imposes minimum procedural duties” in discretionary actions taken by DCS, even where there is no clear procedure for appeal of such a decision under Indiana statute. I.C. § 4-21.5-2-1; A.B., 949 N.E.2d at 1216-17 (applying AOPA standards of review to appellate review of discretionary DCS actions).

AOPA affords judicial relief where an agency action is:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) contrary to constitutional right, power, privilege, or immunity;
(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(4) without observance of procedure required by law; or
(5) unsupported by substantial evidence.

I.C. § 4-21.5-5-14(d).

Our Supreme Court has set forth the standard of review from agency actions under Section 4 — 21.5—5—14(d):

The standard of review of an administrative agency decision is narrow. Board of Trustees of Knox County v. Sullivan, 965 F.2d 558, 564 (7th Cir.1992), cert. denied, 506 U.S. 1078, 113 S.Ct. 1043, 122 L.Ed.2d 353 (1993). An agency decision may be reversed by an appellate court only where it is purely arbitrary, or an error of law has been made. Indiana State Bd. of Public Welfare v. Tioga Pines Living Center, Inc., 622 N.E.2d 935, 939 (Ind.1993), cert. denied, 510 U.S. 1195, 114 S.Ct. 1302, 127 L.Ed.2d 654 (1994). See also Ind.Code § 4-21.5-5-14(d) (1993). An action of an administrative agency is arbitrary and capricious only where there is no reasonable basis for the action. Natural Resources Comm’n v. Sugar Creek Mobile Estates, 646 N.E.2d 61, 64 (Ind. Ct.App.1995), trans. denied.

Ind. Civil Rights Comm’n v. Delaware Cnty. Circuit Court, 668 N.E.2d 1219,1221 (Ind.1996). Put another way, “[a]n arbitrary and capricious decision is one which is ‘patently unreasonable’ and is ‘made without consideration of the facts and in total disregard of the circumstances and lacks any basis which might lead a reasonable person to the same conclusion.’ ” A.B., 949 N.E.2d at 1217 (quoting City of Indianapolis v. Woods, 703 N.E.2d 1087, 1091 (Ind.Ct.App.1998)).

An agency decision is arbitrary and capricious where it deprives an affected individual of due process. The Fourteenth Amendment of the United States Constitution provides, “No State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV § 1. This Court has repeatedly noted that “the right to raise one’s children is more basic, essential, and precious than property rights and is protected by the Due Process Clause.” Hite v. Vanderburgh Cnty. Office of Family & Children, 845 N.E.2d 175,181 (Ind.Ct.App.2006). “Although due process has never been precisely defined, the phrase expresses the requirement of ‘fundamental fairness.’” In re M.M., 733 N.E.2d 6, 10 (Ind.Ct.App.2000) (citing E.P. v. Marion Cnty. Office of Family & Children, 653 N.E.2d 1026, 1031 (Ind.Ct.App.1995)). “The ‘right to be heard before being condemned to suffer grievous loss of any kind ... is a principle basic to our society.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)).

Due process requires “the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Id. (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). Due process is not, however, “ ‘a technical conception with a fixed content unrelated to time, place, and circumstances.’ ” Id. at 334, 96 S.Ct. 893 (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)). Rather, due process “ ‘is flexible and calls for such procedural protections as the particular situation demands.’ ” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).

Where state action is alleged to have deprived an individual of due process rights, we balance three factors to determine whether those rights have been violated:

(1) the private interests affected by the proceeding; (2) the risk of error created by the State’s chosen procedure; and (3) the countervailing governmental interest in supporting use of the challenged procedure. This court must first identify the precise nature of the private interest threatened by the State before we can properly evaluate the adequacy of the State’s process.

In re E.E., 853 N.E.2d 1037, 1043 (Ind.Ct.App.2006) (citations omitted), trans. denied.

Here, Birth Mother’s parental rights were terminated on January 28, 2008. She timely appealed. This Court reversed the order that terminated Birth Mother’s parental rights on September 29, 2008, because DCS had failed to produce sufficient evidence under the termination statutes. That is to say, DCS moved prematurely to terminate Birth Mother’s parental rights. And, although there is an expedited process in place to review these appeals, see Ind. Appellate Rule 21(A), DCS nevertheless consented to the adoption of the Children while Birth Mother’s appeal was pending. This gutted Birth Mother’s only true remedy on appeal: a reversal of the termination order that would keep the disposition plan in place until either DCS could prove its case for termination or Birth Mother could satisfy DCS that the Children could be returned safely to her care.

There is nothing in the record to suggest that DCS informed either Birth Mother or this Court that the adoption was proceeding during the pendency of the appeal. Adoptive Parents and the State now argue that Birth Mother’s present challenge to the adoption is moot because its basis — the invalidity of the termination order upon appeal — was rendered of no effect by the adoption itself. Put another way, the Appellees’ rationale suggests that this Court’s reversal of the termination order has no effect because DCS — that is, a state administrative agency — took action to preclude our review of the termination order. Although Birth Mother would have no avenue for substantive relief as a practical matter, the State argues that this is an appropriate result.

Yet, whatever power the State may have through DCS, an administrative agency of the executive branch, its power does not encompass arbitrary and capricious acts-especially where its actions cut off the constitutionally guaranteed right to an appeal that may afford relief. See Ind. Const. Art. 7, sec. 6 (providing “in all cases an absolute right to one appeal”). Ironically, the State argues that such an outcome serves the State’s, the Children’s, and the Adoptive Parents’ interests in finality through a quick resolution of the Children’s placement.

We do not agree.

First, as previously noted, this Court has put into place an expedited process for resolving appeals from a trial court’s order terminating parental rights. This process seeks to serve the very interests the State now points to as the basis for holding the termination order moot, while also ensuring the due process rights of all involved. These rights include Birth Mother’s substantive due process rights — rights which this Court and our Supreme Court have repeatedly stated are more dear than property rights. See Hite, 845 N.E.2d at 181. The State now asks that we reach a conclusion that not only short-circuits this process, but permits DCS to foreclose an individual’s procedural and substantive due process rights, which are enforced through judicial proceedings. Such an outcome transgresses upon separation of powers principles, which preclude any “person, charged with official duties under one of the [three departments of government]” from exercising “any of the functions of another” except as expressly provided by the Indiana Constitution. Ind. Const. Art. 3, sec. 1.

Second, the facts of this case show that the State’s chosen course of action does not serve the interests it seeks to advance. DCS was a party to the appeal of the termination order and consented to the Children’s adoption without notice to Birth Mother — indeed, having had her parental rights terminated, the relevant statutory provisions did not require DCS to provide Birth Mother with notice of the adoption proceeding. Yet DCS’s decision to give its consent to the adoption, together with the adoption court’s grant of Adoptive Parents’ petition, resulted in Birth Mother’s petition to set aside the adoption. As of this Court’s opinion today, the litigation has run for more than 3 ½ years without final resolution; while some delay is attributable to Birth Mother, much of this delay is also attributable to the State, which asked for several continuances for filing its brief before the trial court. None of this serves anyone’s interest in finality.

Additionally, were we to adopt the State’s position, we would shift the burden of proof to the birth parents — an overwhelming burden under the circumstances, in that it would require proof by clear and convincing evidence that the adoption was inappropriate and that placement of children (perhaps long removed from the home) with birth parents is in the children’s best interests. This would only magnify the burden upon Birth Mother, who, having succeeded in reversing the termination order on appeal, would be forced to prove on the merits that vacation of the adoption decree was in the best interests of the Children.

We therefore conclude that DCS’s decision to consent to the adoption was an arbitrary and capricious agency action that violated Birth Mother’s due process rights. It is true that Indiana statutes provide for an adoption to move forward even during an ongoing appeal of an order terminating parental rights, leaving such decisions in the discretion of our trial courts. However, those provisions do not operate in isolation from the other provisions of the adoption statutes, or in isolation from rights that the Indiana and United States Constitutions guarantee our citizens.

The State’s consent to the adoption deprived Birth Mother of her due process right to meaningful appeal of the termination order. We are thus compelled to conclude that the consent was wrongfully given. As the Children’s legal custodian, discretion to consent to the adoption rested with DCS. DCS abused that discretion. This in turn rendered the adoption decree void because there was no other party capable of giving consent. Coming during the pendency of Birth Mother’s appeal, the consent and the adoption decree worked to deprive Birth Mother of her due process right to a meaningful appeal of the termination order.

Having reached that conclusion, we must therefore hold, however reluctantly, that the Children’s adoption by their Adoptive Parents must be set aside because of DCS’s wrongful conduct in this case.

Where, as here, DCS is aware of a pending appeal of the termination of a parent’s rights but consents to the adoption of the children covered by a termination order, it is incumbent upon DCS to provide notice of the adoption proceedings. Holding otherwise would permit an executive branch agency to determine the nature and extent of a parent’s right to meaningful appellate review of a court order disposing of one of the most precious substantive rights afforded to our citizens under the Indiana and United States Constitutions: the right to raise one’s children.

We do not hold, however, that the statutory scheme at issue here is unconstitutional either facially or as applied to Birth Mother in this case. The adoption statutes, taken together with existing constitutional guarantees, place upon DCS the burden of honoring due process rights where it has succeeded in an action to terminate a parent’s rights and the parent seeks review of the termination order. It is incumbent upon DCS to act in a manner that comports with due process rights where its actions affect the substantive and procedural rights of parents — even those whose parental rights have been terminated. This case is no exception to that requirement.

Because DCS’s arbitrary and capricious grant of consent to the Children’s adoption renders the adoption decree void, on remand the trial court must grant Birth Mother’s petition to set aside the decree. Adoptive Mother may seek to renew her petition to adopt the children, or DCS may reinstate its CHINS action, and, though we note that the Children have been in Adoptive Parents’ care for nearly six years, we take no position today as to the merits of the outcome upon remand.

Conclusion

The State’s consent to the adoption of the Children was arbitrary and capricious and in derogation of Birth Mother’s procedural due process right to a meaningful appeal of the termination order. The adoption decree is therefore void. We do not, however, conclude that the statutory scheme for adoption in Indiana is unconstitutional. We therefore reverse the adoption court’s denial of Birth Mother’s petition to set aside the adoption decree and remand this matter for further proceedings.

Reversed and remanded.

BAKER, J., concurs.

VAIDIK, J., concurs in result with separate opinion.

VAIDIK, Judge,

concurring in result.

I agree with the majority that Birth Mother’s due-process rights were violated, she should have received notice of the adoption proceedings, and the adoption decree must be set aside. I also agree with the majority’s conclusion that the adoption statutes at issue are constitutional. My reasoning, however, is different. I conclude that the adoption statutes require notice of adoption proceedings to birth parents whose rights have been terminated but who have not exhausted their appeals.

Birth Mother’s parental rights to her two children were terminated by a trial court in January 2008, and she appealed. This Court reversed the termination order just eight months later. We did so without knowledge that the children were adopted while Birth Mother’s appeal was pending. Birth Mother also knew nothing of the adoption proceedings.

At the heart of this case is DOS’s claim that Birth Mother received all the procedural due process to which she was entitled — that is, DCS did not have to give Birth Mother notice of the adoption proceedings or obtain her consent to the adoption because her parental rights had been terminated at the trial-court level. Ind. Code §§ 31-19^2.5-4(4), 31-19-9-8(a)(8). Because Birth Mother had a fundamental, substantive right to the care and custody of her children, In re C.G., 954 N.E.2d 910, 916-17 (Ind.2011) (citing Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)), and she had not exhausted all of her appellate remedies when the adoption proceedings were initiated, her due-process rights were violated.

Birth Mother challenges the constitutionality of Indiana’s adoption statute, particularly its notice and consent provisions. “When an appellant challenges the constitutionality of a statute, we presume that the statute is constitutional until that presumption is overcome by a contrary showing.” Studler v. Ind. Bureau of Motor Vehicles, 896 N.E.2d 1156, 1159-60 (Ind.Ct.App.2008). The party challenging the statute’s constitutionality bears the burden of proof, and all doubts will be resolved against that party. Id. “The party must demonstrate that no set of circumstances exists that would make the statute constitutional.” Id. (citing Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind.1999)). If a statute may be construed to support its constitutionality, we must adopt that construction and find the statute to be constitutional. Id.

Indiana Code section 31-19-2.5-4(4) provides that “notice of the pendency of the adoption proceedings does not have to be given to ... a person whose parental rights have been terminated before the entry of a final decree of adoption.” The relevant consent provision, Section 31-19-9-8(a)(8), states that a parent need not consent to the adoption of her child if “[T]he parent-relationship has been terminated under IC 31-35.” Because we presume these statutes to be constitutional, I would construe their notice and consent exemptions to apply only when a parent’s rights have been terminated as a final matter — after exhaustion of all appellate remedies. This construction protects a parent’s substantive due process right to the care and custody of her children and, by preserving notice and consent, affords an opportunity to be heard at a meaningful time and in a meaningful way.

Reading the statutes in this manner does not preclude a trial court from granting an adoption petition when an appeal of a termination order is pending. See Ind. Code § 31-91-11-6. If a birth parent is notified of adoption proceedings, she may consent to the adoption. Or a trial court may determine that the parent’s consent is not required. See Ind.Code § 31-19-9-8(a)(ll). In either instance, the trial court may exercise its discretion and grant an adoption petition despite a pending appeal. The corresponding section of the termination statute also provides that this may occur. See Ind.Code § 31-35-6-3. So long as a parent is given notice of these adoption proceedings, however, such a decision would not run afoul of that parent’s due-process rights.

Birth Mother has a substantive due process right to the care and custody of her children. While I conclude that the provisions of the adoption statute challenged here are constitutional, I reach this conclusion by reading the statute to excuse notice of adoption proceedings only when a parent’s rights have been terminated as a final matter through exhaustion of all appellate remedies. Birth Mother’s children were adopted without notice to her before she had exhausted these remedies. As a result, her due-process rights were violated, and the adoption decree is void. See In re Adoption of L.D., 938 N.E.2d 666, 669 (Ind.2010) (citing Stidham v. Whelchel, 698 N.E.2d 1152, .1154 (Ind.1998)).

      . We heard oral argument on this case at Greensburg High School in Greensburg, Indiana on September 27, 2012. We thank the school and its students and their guests from North Decatur and South Decatur High Schools for their hospitality, and the parties for their able advocacy.

      . Indiana Code Section 31-14-1-11 provides for notice to and intervention by the Indiana Attorney General where "a statute, ordinance, or franchise is alleged to be unconstitutional.”

      . On May 31, 2011, Adoptive Father was killed in a motor vehicle accident, of which this Court was notified on July 23, 2012. A review of the trial court records reveals no similar notice to the trial court. We continue to use "Adoptive Parents” in most instances, in order to remain consistent with the conduct of prior proceedings.

      . More troubling than all of this is that much of the blame for this delay rests with the adoption court, which left Birth Mother’s motion for summary judgment pending from July 29, 2009 until December 27, 2011 — a span of nearly 2 ½ years, and nearly a year after Birth Mother's memorandum in response to the State’s trial-court briefing. Though this period well exceeded the parameters under which a special judge could be obtained under Trial Rules 53.1 and 53.2 (the so-called "lazy judge” rules), during oral argument counsel for Birth Mother indicated that he was loath to antagonize a trial court before which he frequently practiced. It is for this reason that our Supreme Court changed the procedure under which appointment of a special judge may be sought under our trial rules. We also observe that in matters of such importance as the disposition of children in an adoption matter, this Court has implemented expedited procedures to ensure timely consideration of such cases. It seems to us that trial courts should similarly turn to such cases in an expedited fashion, and we cannot reconcile the speed with which the adoption court moved to approve the adoption with the extreme delays in its consideration of Birth Mother’s motion for summary judgment.

      . Indeed, we note that the Deputy Attorney General who appeared before this Court acknowledged during oral argument that the Jasper County DCS office’s consent to the adoption before the resolution of Birth Mother’s appeal of the termination order was unusual.

      . Section 3 l-35-6-4(a)(2) of the termination statute provides that a parent need not give consent when their rights are terminated by a juvenile or probate court. However, I would read this statute to also refer to termination as a final matter, after exhaustion of a parent’s possible appellate remedies.


author: FISHER, Senior Judge.

text:
    MILLENNIUM REAL ESTATE INVESTMENT, LLC, an Indiana Limited Liability Company, Petitioner, v. ASSESSOR, BENTON COUNTY, Indiana, Respondent.
    No. 49T10-1008-TA-42.
    Tax Court of Indiana.
    Nov. 5, 2012.

      Jerome L. Withered, Withered Burns & Persin, LLP, Lafayette, IN, Attorney for Petitioner.
    Marilyn S. Meighen, Meighen & Associates, P.C., Carmel, IN, Attorney for Respondent.
   FISHER, Senior Judge.

Millennium Real Estate Investment, LLC appeals the final determination of the Indiana Board of Tax Review upholding the assessments of its real property for the 2008 tax year. The Court affirms.

FACTS AND PROCEDURAL HISTORY

Millennium owns three parcels of land in Boswell, Indiana, consisting of approximately twenty-one and a half acres and containing an industrial building and three Quonset storage buildings. For the 2008 tax year, the Benton County Assessor assigned Millennium’s property a total assessed value of $689,800 ($230,800 for land and $409,000 for improvements).

Millennium believed the assessments were too high and, therefore, sought review first with the Benton County Property Tax Assessment Board of Appeals and then with the Indiana Board. On April 7, 2010, the Indiana Board held a hearing during which Millennium offered the testimony of its managing partner, Gene McGowen, and an appraisal, completed in conformance with the Uniform Standards of Professional Appraisal Practice (US-PAP). Millennium’s Appraisal estimated the value of its property at $325,000 as of March 1, 2008, and stated that the property was sold in December 2003 for $182,000. Millennium also presented an Asset Purchase Agreement, which provided that it purchased its property for $193,817 on June 30, 2008. In contrast, the Assessor presented an appraisal, also completed in conformance with USPAP, which valued the property at $640,000 as of January 10, 2007., On July 6, 2010, the Indiana Board issued its final determination upholding Millennium’s assessments.

On August 16, 2010, Millennium initiated this original tax appeal. The Court heard oral argument on February 18, 2011. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

The party seeking to overturn an Indiana Board final determination bears the burden of demonstrating its invalidity. Hubler Realty Co. v. Hendricks Cnty. Assessor, 938 N.E.2d 311, 313 (Ind. Tax Ct.2010) (citation omitted). Consequently, Millennium must demonstrate to the Court that the Indiana Board’s final determination is, for example, arbitrary, capricious, or unsupported by substantial evidence. See Ind.Code § 33-26-6-6(e)(l), (5) (2012).

ANALYSIS

On appeal, Millennium asserts that the Indiana Board’s final determination is incorrect for two main reasons. First, Millennium claims that the Indiana Board simply ignored its December 2003 sales evidence and improperly discounted its June 2008 sales evidence. Millennium also claims that the Indiana Board erred in assigning greater weight to the Assessor’s Appraisal. The Court will address these claims in turn.

I.

Millennium asserts that the Indiana Board erred in ignoring its December 2003 sales evidence and in discounting its June 2008 sales evidence because that evidence showed that its parcels were recently sold, in two separate arm’s length transactions, for well below their collective assessed values. (See Pet’r Br. at 9-11.) Therefore, explains Millennium, the sales evidence indicated that its assessments were incorrect. The Court disagrees.

When a taxpayer offers probative evidence to support its case during an Indiana Board hearing, the Indiana Board must deal with that evidence in some meaningful manner. See Clark v. State Bd. of Tax Comm’rs, 694 N.E.2d 1230, 1235 (Ind. Tax Ct.1998). Probative evidence is “evidence sufficient to establish a given fact that, if not contradicted, will remain sufficient.” Meadowbrook N. Apts. v. Conner, 854 N.E.2d 950, 953 (Ind. Tax Ct.2005) (citation omitted). The December 2003 sales evidence, which was contained within the Assessor’s Appraisal, stated:

The [parcels] ha[ve] been under the ownership of Richard Robinson or related entities since 1996. In December 2003, title to the [parcels] was transferred from Ralph Richard Robinson, an undivided 90/100th interest and James B. Freeland, an undivided 10/100th interest to the current owner, Robinson Family Enterprises, LLC. At that time, the undivided 10 percent interest of James B. Freeland was acquired in both the subject [parcels] and another 38,688 square foot industrial property located at 517k East Main Street (County Road 89k South) in Foresman, Indiana. The pnce for the acquisition of this interest in both properties is reported by Dick Robinson to be $182,000.00.

(Cert. Admin. R. at 237 (emphasis added).) This evidence simply is not probative in demonstrating that Millennium’s 2008 assessments are incorrect for several reasons.

First, this evidence establishes that the subject parcels and another property sold for $182,000, providing no indication of the individual value of either property. Next, there is no explanation as to how the December 2008 sales price relates to the effective valuation date for a 2008 assessment (ie., January 1, 2007). See 50 Ind. Admin. Code 21—3—3(a)—(b) (2008) (see http://www.in.gov/legislative/iac/) (repealed 2010); see also, e.g., Big Foot Stores LLC v. Franklin Twp. Assessor, 919 N.E.2d 621, 625-26 (Ind. Tax Ct.2009). Furthermore, the arm’s length nature of the sale is questionable because at least two of the parties to the transaction appear to be related. See, e.g., Austin v. Indiana Family & Soc. Srvs. Admin., 947 N.E.2d 979, 985 (Ind.Ct.App.2011) (stating an arm’s length transaction “refers to dealings between two parties who are not related and not in a confidential relationship, and who are presumed to have roughly equal bargaining power”) (citation omitted). Accordingly, the Court finds that Millennium has not shown that the Indiana Board erred with respect to its December 2003 sales evidence claim.

Similarly, Millennium’s June 2008 sales evidence does not probatively demonstrate that its 2008 assessments are incorrect. Indeed, during the administrative hearing, McGowen repeatedly testified that the seller, an acquaintance, was experiencing financial difficulties, that he had not been able to sell or refinance the property for over two years, and that his lender was threatening foreclosure. (See Cert. Admin. R. at 329-32, 337-55.) McGowen also testified that he perceived the $193,817 purchase price to be “a deal,” and that he considered the transaction to be at arm’s length despite the fact that he indicated otherwise on the sales disclosure form. (Cf. Cert. Admin. R. at 300-03 (indicating that the sale was a “compulsory transaction as a result of foreclosure or express threat of foreclosure, divorce, court order, judgment, condemnation, or probate”) with 354-62.) In turn, the record evidence did not indicate that foreclosures or similar sales were the norm for this type of property. See, e.g., Lake Cnty. Assessor v. U.S. Steel Corp., 901 N.E.2d 85, 91-92 (Ind. Tax Ct.2009) (explaining when bankruptcy sales can be indicative of a property’s assessed value), review denied. Moreover, Millennium’s Appraisal, which valued the parcels at $325,000, even stated that the June 2008 sale “appear[ed] to be at below market rates[.]” (Cert. Admin. R. at 157, 160.) Therefore, the Indiana Board’s conclusion that the June 2008 sales evidence lacked probative value was not arbitrary, capricious, or unsupported by substantial evidence.

II.

The next issue before the Court is whether the Indiana Board erred in assigning greater weight to the Assessor’s Appraisal. The Court will address Millennium’s specific claims in turn.

A.

First, Millennium asserts that the Indiana Board erred in assigning more weight to the Assessor’s Appraisal because it used the “wrong” standard in estimating the value of the subject property. (See Pet’r Br. 11-12.) Millennium explains that in Indiana, the assessed value of real property is based on its value in-use, not its fair market value. (See Oral Argument Tr. at 3-9, 25-28.) Consequently, Millennium maintains that the Indiana Board should have completely rejected the Assessor’s Appraisal, given its fair market value estimation. The Court, however, must disagree.

While Indiana assesses real property on the basis of its market value-in-use, this does not mean that a subject property’s assessed value and its market value will never coincide. See Ind.Code § 6-1.1-31-6(c) (2008); 2002 Real Property Assessment Manual (2004 Reprint) (Manual) (incorporated by reference at 50 Ind. Admin. Code 2.3-1-2 (2002 Supp.)) at 2 (footnote added). For instance, when a property’s current use is consistent with its highest and best use, and there are regular exchanges within its market so that ask and offer prices converge, a property’s market value-in-use will equal its market value because the sales price fully captures the property’s utility. See Manual at 2. On the other hand, when a property’s current use is inconsistent with its highest and best use, then market value-in-use will not equal market value because the sales price will not reflect the property’s utility. See id.

Here, both Appraisals provide that the current industrial use of Millennium’s property is consistent with its highest and best use as improved. (Cert. Admin. R. at 160, 260-62.) Consequently, without anything more, the Court cannot say that the Assessor’s Appraisal utilized an improper assessment standard in estimating the value of Millennium’s property. Accordingly, the Court concludes that the Indiana Board did not err in assigning greater weight to the Assessor’s Appraisal with respect to this claim.

B.

Next, Millennium argues that because the Assessor’s Appraisal “was procured so that the owners could obtain financing!;,]” its estimate of value probably was overstated. (See Pet’r Reply Br. at 2, 4; Pet’r Br. at 12.) Millennium therefore argues that the Indiana Board should have found that its Appraisal better reflected the value of its property. The Court finds Millennium’s argument unpersuasive.

At the outset, the fact that the Assessor’s Appraisal was commissioned for refinancing purposes may go to the weight of the evidence, but it has no bearing on its admissibility and, therefore, does not suggest in and of itself that the estimate of value therein is inflated. This is especially the case when, like here, an appraiser provides an unrebutted written certification as to his impartiality and further certifies that his engagement and compensation were not related to any type of contingent fee arrangement or the production of some predetermined result. (See Cert. Admin. R. at 227.) But see Wirth v. State Bd. of Tax Comm’rs, 613 N.E.2d 874, 877 (Ind. Tax Ct.1993) (explaining that “the contingent nature of an expert witness’s fee goes to the weight, not the admissibility, of the expert’s testimony”).

Nevertheless, in certain instances, an appraisal prepared for financing purposes may not provide an accurate estimation of a property’s value for ad valorem tax purposes. More specifically, when an appraiser applies the income approach, he may deduct property taxes as an expense because real estate taxes ordinarily are the owner’s responsibility. See, e.g., Matter of Senpike Mall Co. v. Assessor of Town of New Hartford, 136 A.D.2d 19, 22-23, 525 N.Y.S.2d 104 (1988). When valuing property for ad valorem tax purposes, however, the use of that methodology distorts the final estimate of value. See id. (footnote added). In this case, the Assessor’s income approach accounted for property taxes in the development of potential gross income; it did not deduct property taxes as an expense. (See Cert. Admin. R. at 273-75.) On the other hand, Millennium’s income approach deducted property taxes as an expense and, therefore, likely distorted the value of subject property. (See Cert. Admin. R. 163.) Consequently, the Court finds that the Indiana Board also did not err in considering and assigning greater weight to the Assessor’s Appraisal with respect to this claim.

C.

Lastly, Millennium asserts that the sales comparison and income approaches contained in the Assessor’s Appraisal were unreliable because each rated the condition of its improvements as “average,” when a rating of poor would have been more appropriate and neither accounted for functional obsolescence. (See Pet’r Br. at 13, 15-16, 18 (footnote added).) Millennium also discounts the Assessor’s income approach because it used four comparables located miles away from its property in estimating its value. (See Pet’r Br. at 13.) Millennium maintains that the compounding effect of these errors ultimately led to the difference between the two Appraisals’ valuations, and the Indiana Board erred in failing to address those errors in its final determination. (See Pet’r Br. at 13-14,18 (footnote added).)

The valuation of property is a formulation of an opinion, not an exact science. Stinson v. Trimas Fasteners, Inc., 923 N.E.2d 496, 502 (Ind. Tax Ct.2010). For example, in this case, the determination of condition ratings, selection of com-parables, and formulation of vacancy/collection loss rates, among other things, are all factors the parties’ appraisers used to develop their opinions of value. Moreover, because the sales comparison and income approaches account for functional obsolescence implicitly rather than explicitly, it is impossible to discern, without something more, the extent of a property’s loss of value. See, e.g., New Cumberland Corp. v. Borough of Roselle, 3 N.J.Tax 345, 352 (N.J. Tax Ct.1981) (stating that functional or economic obsolescence is only revealed when cost approach valuations are compared with market or income approach valuations); Department of Revenue v. Grant W. Lumber Co., 15 Or. Tax 258, 270 (Or. Tax Ct.2000) (noting that while the sales comparison and income approaches inherently reflect all forms of obsolescence; the cost approach explicitly reflects functional obsolescence). Therefore, “[w]hen there are competing opinions as to how a property should be valued, the Indiana Board must determine which opinion is more probative.” Trimas, 923 N.E.2d at 502. Once the Indiana Board makes such a determination, this Court will not substitute its judgment for that of the Indiana Board simply because it or, like here, one of the parties disagrees with the Indiana Board’s decision. See Grider v. Dep’t of Local Gov’t Fin., 799 N.E.2d 1239, 1243 (Ind. Tax Ct.2003). In other words, Millennium’s sales comparison and income approach arguments merely invite this Court to reweigh the evidence; that task, however, is not within this Court’s prerogative on appeal absent an abuse of discretion. See Trimas, 923 N.E.2d at 498-99; Rubier, 938 N.E.2d at 315 n. 5 (defining “an abuse of discretion”). The Indiana Board’s final determination explains why it found the Assessor’s Appraisal to be more persuasive than Millennium’s, and based on its review of the administrative record, the Court finds no basis for reversing the Indiana Board’s conclusion. Therefore, the Court holds that the Indiana Board did not abuse its discretion in finding the Assessor’s Appraisal more persuasive than Millennium’s Appraisal despite their differences.

CONCLUSION

The Indiana Board’s final determination was neither arbitrary nor capricious; rather, it was supported by substantial and reliable evidence. Accordingly, the final determination of the Indiana Board is AFFIRMED.

      . The Assessor's Appraisal was prepared by a third party for financing purposes in December 2006. (See Cert. Admin. R. at 235, 298.)

      . It appears that neither of the Appraisals valued all three of Millennium’s parcels; nonetheless, because the Indiana Board appears to have assumed otherwise, so shall this Court. (See Cert. Admin. R. at 157, 218-19, 232.)

      . For purposes of assessment, Indiana defines "market value” as:
      The most probable price (in terms of money) which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably, and assuming the price is not affected by undue stimulus. Implicit in this definition is the consummation of a sale as of a specified date and the passing of title from seller to buyer under [certain] conditions!.]
      2002 Real Property Assessment Manual (2004 Reprint) (Manual) (incorporated by reference at 50 Ind. Admin. Code 2.3-1-2 (2002 Supp.)) at 10.

      . See also, e.g., General Electric Co. v. Board of Assessors of Lynn, 393 Mass. 591, 472 N.E.2d 1329, 1341-42 (1984); Alstores Realty Corp. v. Board of Assessors of Peabody, 391 Mass. 60, 460 N.E.2d 1276, 1282 (1984); Humble Oil & Refining Co. v. Borough of Englewood Cliffs, 71 N.J. 401, 365 A.2d 929, 931 (1976); City of New Brunswick v. State of N.J. Div. of Tax Appeals, 39 N.J. 537, 189 A.2d 702, 706-07 (1963); RTC Props, v. Town of Kearny, 13 N.J.Tax 146, 156-57 (N.J. Tax Ct.1993); International Ass’n of Assessing Officers, Property Assessment Valuation 240 (2nd ed. 1996).

      . An improvement's condition rating reflects its "wear and tear” relative to its age, including the degree of maintenance and modernization to the improvement. See Real Property Assessment Guidelines For 2002-Version A (2004 Reprint) (incorporated by reference at 50 I.A.C. 2.3 — 1—2(c)), Bk. 2, App. F at 23. In turn, functional obsolescence is a loss of value caused by an improvement’s internal inutilities, such as design defects or the need for modernization. See id. at 4.

      .Millennium also suggests that the Assessor’s Appraisal used an improper vacancy/collection loss rate, resulting in a value estimate significantly higher than its own. (See Pet'r Br. at 14.) A closer examination of the each Appraisal, however, indicates that the formulations of total expenses and accounting for property taxes most likely led to their differing valuations. (Cf. Cert. Admin. R. at 163— 64 with 275-78.)

      . The Indiana Board also concluded that the Assessor’s Appraisal was more persuasive than Millennium's Appraisal because the Assessor’s Appraisal indicated that the property was inspected within a month of the relevant valuation date whereas Millennium's Appraisal provided that the property was inspected over three years later. (See Cert. Admin. R. at 108-09.) That conclusion was erroneous: absent a showing of some relevant physical change in a property, the date upon which a property inspection occurs has no bearing on the probative value of an appraisal. Nevertheless, the Court finds the error is harmless, given the totality of the record evidence and the Indiana Board's conclusions thereto.