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March 2, 2026 Get Citation Alerts Download PDF Add Note

Renaissance Associates I L.P. v. City Of Hammond, Indiana

Indiana Court of Appeals

• Citations: None known
• Docket Number: 24A-PL-02312
• Panel: Elaine B. Brown, Margret Robb
• Judges: Robb SR, May, Brown

• Disposition: Affirmed

• Opinion

• Authorities (30)

• Cited By (0)

• Summaries (0)

• Similar Cases (135)

• PDF

Disposition

Affirmed

Combined Opinion

                        by [Margret Robb](https://www.courtlistener.com/person/7273/margret-robb/)

IN THE

Court of Appeals of Indiana
Renaissance Associates I L.P., FILED
Jonathan Petersen, and Austin Bertrand, Inc., Mar 02 2026, 8:49 am

Appellants-Plaintiffs, CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

v.

City of Hammond, Indiana,
Appellee-Defendant.

March 2, 2026

Court of Appeals Case No.
24A-PL-2312

Appeal from the
Lake Superior Court

The Honorable
Calvin D. Hawkins, Judge

Court of Appeals of Indiana | Opinion 24A-PL-2312 | March 2, 2026 Page 1 of 31
Trial Court Cause Nos.
45D02-1610-PL-65
45D02-1612-SC-2226

Opinion by Senior Judge Robb
Judges May and Brown concur.

Robb, Senior Judge.

Statement of the Case
[1] This appeal is the next in a line of challenges involving the application of the

rental fee restriction (Fee Restriction) under Indiana Code section 36-1-20-5(c)

(2014) and the rental fee exemption (Fee Exemption) under Indiana Code

section 36-1-20-5(a) (2014) in light of existing local residential inspection and

registration fee programs in the City of Hammond (Hammond). Renaissance

Associates I, L.P. (Renaissance), Jonathan Petersen (Petersen), and Austin

Bertrand, Inc. (Austin) (collectively, the Landlords), appeal from the trial

court’s order granting Hammond’s cross-motion for summary judgment and
1
denying the Landlords’ motion for summary judgment in actions brought to

recover refunds of rental registration fees paid before legislative changes were

passed. We affirm.

1
Renaissance also challenges an evidentiary ruling of the trial court. However, given our disposition of this
case it is unnecessary for us to address that issue here.

Court of Appeals of Indiana | Opinion 24A-PL-2312 | March 2, 2026 Page 2 of 31
Issues
[2] The dispositive procedural issue presented in this appeal is whether the trial

court erred by denying the Landlords’ motion for summary judgment and

granting Hammond’s cross-motion for summary judgment. The dispositive

substantive issue in this appeal is whether a 2015 legislative change to the

definition of rental registration or inspection program in Indiana Code section

36-1-20-1.2 (2015), passed with retroactive effect, when read in conjunction

with the Fee Restriction language of Indiana Code section 36-1-20-5 (c) (2014),

triggers a refund obligation in the absence of explicit statutory language for the

same.

Facts and Procedural History
A. Local Ordinance and Legislative Background2
[3] “To protect the public health, safety, and general welfare of the city, Hammond

created two programs—an inspection program and a rental-registration

program. Both programs charge fees for rental units.” City of Hammond v.

Herman & Kittle Properties, Inc., 119 N.E.3d 70, 74 (Ind. 2019). In 1961, the

Hammond City Council adopted Ordinance No. 3337, which established a

rental inspection program. Appellants’ App. Vol. II, pp. 245-50; Appellants’

2
The Supreme Court’s opinion in City of Hammond v. Herman & Kittle Properties, Inc., 119 N.E.3d 70 (Ind.
2019) and this Court’s decision in 6232 Harrison Ave. LLC, v. City of Hammond, 181 N.E.3d 379 (Ind. Ct. App.
2021) provide the source for much of the background provided here to explain how the parties to this appeal
arrived at this point and will be cited as such.

Court of Appeals of Indiana | Opinion 24A-PL-2312 | March 2, 2026 Page 3 of 31
App. Vol. III, pp. 2-12. This program authorized the inspection of all dwelling

units, including both owner-occupied and rented. It also charged an annual,

five-dollar inspection fee for hotels and rooming houses. And in 2001, the
3
Hammond City Council adopted Ordinance Number 8327, which established

a rental registration program. Appellants’ App. Vol. III, p. 15. The rental

registration program assessed a $5.00 annual fee for each dwelling or rooming

unit, with the fee due upon the submission of the registration form. Id. at 17.

In 2004, Hammond adopted Ordinance 8570, which increased the annual fee to

$10.00. Id. at 21-22. Then in 2010, Hammond adopted Ordinance Number

9060, which again increased the rental registration fee, resulting in an $80.00

fee. Id. at 25-30.

[4] “The eight-fold increase was Hammond’s response to the 2010 state

constitutional amendment placing caps on property taxes, including a 2% cap

on rental properties.” Hermann & Kittle, 119 N.E.3d at 75. “That amendment

led to substantial savings for landlords but also significantly strained many

municipal budgets—especially for municipalities, like Hammond, whose tax

bases were shrinking.” Id. “Hammond was not the only municipality to

address fiscal restraints by way of rental-unit fees.” Id. “East Chicago, Griffith,

Munster, Nappanee, and Speedway adopted programs to increase rental-fee

revenue before tax caps went into effect.” Id. “After 2010, Bloomington joined

3
Ordinance Number 8327 was also known as Section 96.92 of the Hammond Municipal Code.

Court of Appeals of Indiana | Opinion 24A-PL-2312 | March 2, 2026 Page 4 of 31
Hammond in raising rates; and Crown Point, Evansville, and Valparaiso

started charging rental-unit fees.” Id.

[5] As a result of this activity, the legislature responded in 2011 with the

introduction of House Bill 1543, which proposed to add Indiana Code chapter

36-1-20, “Regulation of Residential Leases.” Id. As introduced, the bill would

have barred a number of rental-unit inspection fees and would have banned

political subdivisions from requiring rental-unit registration. Id. But that

provision did not survive the legislative process, and the final version allowed

cities to collect inspection and registration fees. Id. The fees collected,

however, had to be placed in a special fund to reimburse the political

subdivision for the costs reasonably related to the services justifying the fees

imposed. Id. Additionally, the statute had state-wide application and “did not

restrict how much municipalities could charge for rental inspections and

registrations.” Id.

[6] In 2013, House Bill 1313 was introduced. Similar to the introduced version of

2011’s HB 1543, this bill contained a provision barring local inspection and

registration fees on rental units. That provision was removed, “and the final bill

instead placed an approximately one-year moratorium on imposing new, or

increasing existing, inspection or registration fees.” Id. And it created an

interim study committee to “investigate the regulation of residential leases by

political subdivisions.” Id. (internal quotations omitted).

Court of Appeals of Indiana | Opinion 24A-PL-2312 | March 2, 2026 Page 5 of 31
[7] The study committee gathered evidence from proponents and opponents of

residential lease regulations. “One side was concerned that the fees were

becoming too costly, negatively impacting housing affordability and new rental

development.” Id. “A representative from Bloomington testified that its

program began in 1961, that renters make up 67% of its housing market, and

that the city’s program protects the welfare of its citizens and the character of

the city itself.” Id. “West Lafayette representatives explained that the city has

had an inspection program since 1976, the number of rental units is increasing,

and the program protects property and assures parents of students that housing

is safe.” Id. (internal quotations omitted).

[8] In 2014, House Bill 1403 was introduced “to significantly amend Chapter 36-1-

20.” Id. at 76. “In relevant part, the bill included a provision—the ‘Fee

Restriction’—prohibiting a political subdivision from charging rental-

registration fees over $5.” Id. “About two weeks after the bill with the Fee

Restriction was first read, a West Lafayette Representative introduced an

amendment adding the ‘Fee Exemption.’” Id. “The Fee Exemption specified

that the Fee Restriction would not apply to a political subdivision with a rental

registration or inspection program created before July 1, 1984.” Id. (internal

quotation omitted).

[9] “The Legislative Service Agency issued a fiscal impact statement analyzing the

proposed legislation.” Id. The statement found that, “[t]here are 14 cities or

towns that have rental inspection programs. . . . Two of those programs,

Bloomington and West Lafayette, would not be affected by the proposed

Court of Appeals of Indiana | Opinion 24A-PL-2312 | March 2, 2026 Page 6 of 31
changes to the law as they were established prior to July 1, 1984.” Id. That bill

was enacted with both the Fee Restriction and the Fee Exemption in place. Id.

Although not noted in the fiscal impact statement, Hammond also was

unaffected by the changes because its programs were established prior to July 1,

1984.

[10] In 2015, House Bill 1165 was introduced, and, as introduced, would have

changed Chapter 36-1-20 by “narrowing the Fee Exemption and supplying

certain new definitions.” Id. Various portions of the bill as introduced would

have eliminated Hammond and Bloomington from the Fee Exemption.

“Ultimately, the language narrowing the Fee Exemption was taken out.” Id.

“Another part of the proposal that would have excluded Bloomington—along

with Hammond—from the Fee Exemption was likewise rejected; this part had

to do with the definitions of rental registration or inspection program and rental

unit.” Id. (internal quotations omitted). “The proposal sought to define rental

registration or inspection program as a program authorizing the registration or

inspection of rental units and no other type of dwelling.” Id. at 76-77 (internal

quotations omitted). Both Bloomington’s and Hammond’s programs would

have been excluded because, under their respective programs, inspections and

registrations were required for rooming houses as well. Id. at 77.

[11] The final bill adopted definitions that excluded Hammond’s programs, but not

those of West Lafayette or Bloomington. Id. “The enacted act defined ‘rental

registration or inspection program’ as ‘a program authorizing the registration or

inspection of only rental housing.’” Id. (quoting P.L. 65-2015, § 1 (codified at

Court of Appeals of Indiana | Opinion 24A-PL-2312 | March 2, 2026 Page 7 of 31
Ind. Code § 36-1-20-1.2 (Supp. 2015)). “The term does not include a general

housing registration or inspection program or a registration or inspection

program that applies only to rooming houses and hotels.” Id. Thus, Hammond

was excluded from the Fee Exemption: “(1) because it had a general inspection

program that permitted the inspection of non-rental housing[;] and (2) because

it required the inspection only of rooming houses and hotels.” Id.

B. City of Hammond v. Herman & Kittle Properties, Inc.
[12] During this period of legislative activity, Hammond filed a complaint on June

23, 2015 seeking a declaratory judgment that it could continue charging its $80
4
per-rental fee. Herman & Kittle refused to pay assessed fees charged by

Hammond and protested the charges, citing the Fee Restriction statute.

“[Hammond] argued that that its rental-fee program was not subject to the Fee

Restriction’s $5 cap because the Fee Exemption [applied to it at that time].” Id.

at 76. After the enactment of House Bill 1165, Hammond “amend[ed] its

complaint to add state constitutional claims challenging the Fee Exemption.”

Id. at 77. “Hammond argued that the Fee Exemption violated both Article 4,

section 22’s prohibition of special laws relating to fees and Article 4, Section

23’s prohibition of special legislation where a general law can be made.” Id.

“Hammond further argued that the Fee Exemption [was] not severable from

4
The declaratory judgment complaint was amended in September to add a statement about venue, and again
in November 2015 to add constitutional claims challenging the Fee Exemption as a special law and a
violation of the prohibition against special legislation.

Court of Appeals of Indiana | Opinion 24A-PL-2312 | March 2, 2026 Page 8 of 31
the remainder of Indiana Code section 36-1-20-5.” Id. Ultimately, the Supreme

Court concluded that the Fee Exemption was unconstitutional special

legislation. Id. at 85-87. Nevertheless, the court held that the Fee Exemption

was severable from the rest of the statute, resulting in the statewide application

of the $5.00 Fee Restriction. Id. at 87-89 (the Supreme Court’s decision in

Herman & Kittle did not change the legislative impact on Hammond after the

definitional statute passed but merely confirmed that Hammond was subject to

the Fee Restriction’s $5.00 limit).

C. 6232 Harrison Ave. LLC v. City of Hammond 5
[13] It was not until after the passage of the 2015 definitional statute that landlords

such as Renaissance sought refunds for the 2015 fee registration payments.

And it was not until after the 2019 decision in Herman & Kittle, that landlords

such as Renaissance amended their complaints to raise constitutional

arguments to support their refund claims. 6232 Harrison Ave. LLC v. City of

Hammond, 181 N.E.3d 379, 382-83 (Ind. Ct. App. 2021) involved a class action

complaint filed in late 2016 by several corporate landowners, which as

amended after the Supreme Court’s holding in Herman & Kittle, alleged that

they were due refunds for the payments made above the $5 Fee Restriction

made pursuant to Hammond City Ordinance Section 96.152. However, the

5
The 6232 Harrison case has the same trial court cause number as the present case. 6232 Harrison was brought
on behalf of the seven named plaintiffs and all others similarly situated such as the Landlords. And there was
consolidation and de-consolidation of several cases.

Court of Appeals of Indiana | Opinion 24A-PL-2312 | March 2, 2026 Page 9 of 31
main issue in the appeal before this Court was whether the trial court correctly

dismissed the landlords’ complaint for failure to provide timely notice under the
6
Indiana Tort Claims Act (ITCA).

[14] The 6232 landlords paid their 2015 registration fees on March 6th or 9th of
7
2015. And they served their ITCA notices on Hammond on August 5, 2015.

Hammond argued that the 6232 landlords’ complaint should be dismissed

because “the [l]andlords knew that they owed the fees on January 1 and, thus,

that the August 5, 2015, filing of the notices, 216 days later, was untimely under

the ITCA’s 180-day filing requirement.” 6232 Harrison, 181 N.E.3d at 383. We

observed that “Indiana’s case law is clear that the ITCA’s 180-day clock begins

to run only once some injury is ascertainable by the claimant and also after that

injury has been sustained by the claimant.” Id. at 385. And we acknowledged

that “the 180-day requirement ‘is intended to ensure that government entities

have the opportunity to investigate the incident giving rise to the claim and

prepare a defense.’” Id. (quoting Schoettmer v. Wright, 992 N.E.2d 702, 706

(Ind. 2013)). Ultimately, we concluded that “[t]he [l]andlords did not sustain

any damage until March 9, 2015, when they paid the City’s registration fees[,]”

6
The Indiana Tort Claims Act is found at Indiana Code Chapter 34-13-3 et seq. (1998). The notice
requirement for claims against political subdivisions is located at Indiana Code section 34-13-3-8 (1998).
7
The parties disagreed as to the exact date the fees were paid. However, that discrepancy did not alter the
resolution of the legal issue.

Court of Appeals of Indiana | Opinion 24A-PL-2312 | March 2, 2026 Page 10 of 31
and “[t]hey filed their notice with [Hammond] within 180 days of those

payments.” Id. at 389.

D. Aftermath
[15] Thus, the legislative enactment of the definitional statute independently

disqualified Hammond from the Fee Exemption. And the Supreme Court’s

decision in Herman & Kittle, decided on constitutional grounds, confirmed that

Hammond, like every other city, was not exempt from the $5.00 Fee

Restriction.

E. The Present Controversy
[16] The present controversy involves the question we were not asked in the prior

cases: whether landlords who paid the $80 per-unit registration fee before the

definitional statute took effect are entitled to a refund of the amount exceeding

the $5,00 Fee Restriction. In other words, did the retroactive effective date of

the 2015 definitional statute—which independently disqualified Hammond

from the Fee Exemption—create a refund obligation for fees already collected?

[17] Pursuant to Hammond’s ordinances, the annual rental registration fee is due by

April 15th each year. Renaissance owns a rental unit community in Hammond

consisting of 450 rental units. Petersen owns one rental unit, and Austin owns

two rental units. Petersen and Austin paid the rental registration fee for 2015

on March 27th, and Renaissance paid its 2015 registration fees on April 14.

There were several options available to the Landlords in the present case. The

options available to the Landlords were (1) to pay and contest later; (2) to pay

Court of Appeals of Indiana | Opinion 24A-PL-2312 | March 2, 2026 Page 11 of 31
under protest; or (3) to not pay and to protest. The landlords in Herman & Kittle

took the stronger position by both protesting and not paying the fees. Here, the

Landlords paid without protest. On April 27th, the Governor signed the bill,

including Indiana Code section 36-1-20-1.2 into law, which set out a new

definition of rental registration or inspection programs. While the statute took

effect retroactively to January 1, 2015, it did not include a provision for refunds

of previously charged amounts. Ind. Code § 36-1-20-1.2 (2015).

[18] It was not until after Hammond’s 2015 declaratory judgment action was filed,

that Renaissance first sent a demand to Hammond’s mayor, raising two issues:

(1) the retroactive application of the new definitional statute, excluding

Hammond from the Fee Exemption, subjecting it to the $5.00 Fee Restriction;

and (2) that Renaissance had 450 rental units constituting a rental housing

property to be assessed a flat fee of $5.00 total for all of the units, not for each

unit. Appellants’ App. Vol. II, p. 182 (June 30, 2015 letter). Renaissance

submitted its formal notice of claim to the mayor of Hammond and city

attorney on August 25, 2015, seeking a refund of the excess payment of fees

above the $5 Fee Restriction amount. Id. at 185 (Renaissance Notice of Claim).

Bertrand’s notices were sent on August 27, 2015, seeking a refund of $75 per

unit. Appellants’ App. Vol. III, pp. 103-04. Petersen’s notice of claim was sent

on August 27, 2015. Id. at 102.

[19] Renaissance filed its complaint against Hammond on October 7, 2016, seeking

recovery of $35,995 of the $36,000 licensing fees imposed by Hammond which

Court of Appeals of Indiana | Opinion 24A-PL-2312 | March 2, 2026 Page 12 of 31
8
Renaissance paid in 2015. On December 2, 2016, Bertrand as Trustee of the

6241 Fairfield Land Trust, the 4820 Oak Land Trust, and Petersen filed a notice

of claim in the Small Claims Division of Lake Superior Court, seeking recovery

of $225. Hammond filed its answer and affirmative defenses as to

Renaissance’s complaint in early December 2016. The parties disagreed as to

the meaning of the retroactive effect of the new legislative definition in light of

no express language providing for refunds.

[20] Renaissance filed a motion for summary judgment after which Hammond filed

its cross motion for summary judgment, and opposition to Renaissance’s

motion for summary judgment. A combined hearing on the motions for

summary judgment in the Bertrand and Renaissance cases was held after which

the trial court denied Renaissance’s motion for summary judgment and granted

Hammond’s cross-motion for summary judgment. A few days later, the trial

court entered an amended order in both cases which granted Hammond’s cross-

motion for summary judgment and denied Renaissance and Bertrand’s motions

for summary judgment. The court then certified the order for interlocutory

appeal.

8
This request mirrored what was alleged in their demand to Hammond’s mayor; namely, that Hammond no
longer applied for the Fee Exemption, and that Hammond was restricted to charging a $5.00 fee for all 450
rental units.

Court of Appeals of Indiana | Opinion 24A-PL-2312 | March 2, 2026 Page 13 of 31
Discussion and Decision
I. Competing Summary Judgment Motions
[21] Renaissance, Petersen, and Bertrand contend that the trial court erred by

granting summary judgment in favor of Hammond. And they dispute the trial

court’s denial of their motion for summary judgment. The fact that the parties

filed cross-motions for summary judgment does not alter our standard of

review. Pond v. McNellis, 845 N.E.2d 1043, 1053 (Ind. Ct. App. 2006), trans.

denied. We consider each motion separately to determine whether the moving

party is entitled to judgment as a matter of law. Id.

[22] We review a trial court’s summary judgment order de novo. Kovach v. Caligor

Midwest, 913 N.E.2d 193, 196 (Ind. 2009). We apply the same standard as the

trial court: whether the designated evidence shows that there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as

a matter of law. Ind. Trial Rule 56(C); Freidline v. Shelby Ins. Co., 774 N.E.2d

37, 39 (Ind. 2002). In making this determination, we construe all facts and

reasonable inferences in a light most favorable to the non-moving party, Boggs v.

Tri–State Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000), and resolve all doubts

as to the existence of a factual issue against the moving party, Tibbs v. Huber,

Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind.1996). The moving party has the

initial burden to prove that there are no genuine factual issues and that

judgment as a matter of law is appropriate, and only then must the non-moving

party respond by setting forth specific facts in the designated evidence

Court of Appeals of Indiana | Opinion 24A-PL-2312 | March 2, 2026 Page 14 of 31
demonstrating the opposite is true. Stephenson v. Ledbetter, 596 N.E.2d 1369,

1371 (Ind. 1992).

[23] A genuine issue of material fact exists where facts concerning an issue which

would dispose of the litigation are in dispute, or where undisputed facts are

capable of supporting conflicting inferences on such an issue. Briggs v. Finley,

631 N.E.2d 959, 963 (Ind. Ct. App. 1994), trans. denied. We may affirm a trial

court’s grant of summary judgment upon any theory supported by the

designated materials. Sims v. Barnes, 689 N.E.2d 734, 735 (Ind. Ct. App. 1997),

trans. denied. Additionally, we “may determine in the context of summary

judgment a mixed question of law and fact.” Ebbinghouse v. FirstFleet, Inc., 693

N.E.2d 644, 647 n.2 (Ind. Ct. App. 1998), trans. denied.

[24] Renaissance’s motion for summary judgment alleged that it had a rental unit

community, and that it had paid a registration fee of $80.00 per rental unit, for a

total payment of $36,000.00, rather than $5.00 for its rental unit community.

Appellants’ App. Vol. II, pp. 114-15 (emphasis added) (Renaissance Summary

Judgment Motion). Renaissance alleged that it was entitled to a refund of the

overpayment, subject to a maximum $5.00 setoff, as a matter of law for the

overpayment of fees in 2015. Id. And Bertrand’s motion for summary

judgment claimed a refund for payments made in 2015 in excess of $5.00 per

rental unit.

[25] Hammond responded to Renaissance’s motion by asserting immunity from

liability under the common law and ITCA. Hammond argued that at the time

Court of Appeals of Indiana | Opinion 24A-PL-2312 | March 2, 2026 Page 15 of 31
it charged the 2015 registration fees, it was acting under a validly enacted

statute. Further, Hammond argued that it was entitled to rely on the

constitutionality of statutes, which enjoy the presumption of constitutionality.

Additionally, Hammond argued that it was not liable for the acts of other

governmental entities, such as the legislature. As for its common law

arguments, Hammond argued that courts have long recognized immunity from

tort liability when acting under a statute that is later declared unconstitutional.

And Hammond claimed that “conduct lawful under a statute cannot be later

found wrongful due to a Supreme Court decision striking down that statute.”

Appellants’ App. Vol. II, p. 229 (quoting Ocol v. Chicago Tchrs. Union, No. 18 C

8038, 2020 WL 1467404, at *2 (N.D. Ill. Mar. 26, 2020), aff’d, 982 F.3d 529

(7th Cir. 2020)).

[26] The Landlords’ opening brief included the argument that once a statute has

been declared to be unconstitutional, it is to be treated as if it had never been

enacted. See Appellants’ Br. pp. 21, 25-29. They made this argument to

support their contention that the fees they paid were “illegally” collected and,

thus, subject to refund. However, the Landlords paid the fees without protest

before the legislature passed the definitional statute, and prior to Hammond’s

declaratory judgment action. What made the collection of fees in excess of

$5.00 “illegal” for Hammond was the legislature’s passage of the definitional

statute, excluding Hammond from the Fee Exemption, not the Supreme

Court’s much later decision in Herman & Kittle. And it was the Fee Exemption

not the definitional statute, that was held to be unconstitutional. Herman &

Court of Appeals of Indiana | Opinion 24A-PL-2312 | March 2, 2026 Page 16 of 31
Kittle, 119 N.E.3d at 87. Thus, this part of the constitutional argument is

unhelpful to resolution of the issue because it was legislative action, not a

constitutional decision that prohibited Hammond from collecting fees in excess

of the Fee Restriction. The Supreme Court’s decision in Herman & Kittle

prohibited the collection of fees in excess of the Fee Restriction for all cities and

towns, in effect confirming what the statutory amendment accomplished;

disqualification of Hammond from the Fee Exemption.

[27] The Landlords’ reply brief directed our attention to McKesson Corp. v. Division of

Alcoholic Beverages & Tobacco, 496 U.S. 18 (1990). In McKesson, the United States

Supreme Court held that Florida owed relief to a liquor distributor who had

paid taxes under a revised excise tax scheme that gave preferential treatment to

its competitors. Id. at 31, 52. But the key fact in McKesson was that Florida

enacted its revised scheme after the Supreme Court had already struck down a

nearly identical scheme in Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984).

496 U.S. at 23. Florida, in short, knew its scheme was constitutionally suspect

and collected the taxes anyway.

[28] Hammond did the opposite. When Hammond collected the 2015 registration

fees, it was operating under a Fee Exemption that no court had questioned and

no statute had withdrawn. The legislature only later enacted the definitional

statute disqualifying Hammond from the Fee Exemption, with a retroactive

effective date. And our Supreme Court did not hold the Fee Exemption

unconstitutional until Herman & Kittle — a case of first impression decided years

after the fees were collected. Unlike Florida in McKesson, Hammond had no

Court of Appeals of Indiana | Opinion 24A-PL-2312 | March 2, 2026 Page 17 of 31
reason to doubt the legality of its actions at the time it acted. McKesson is

therefore inapposite; it stands for the principle that a state cannot collect fees it

knows to be unlawful and then resist refunding them. That is not what

happened here.

[29] Here, all cities, including Hammond, were subject to the Fee Restriction. The

definitional statute independently disqualifying Hammond from the Fee

Exemption provided for retroactive effect. Ergo, the retroactive effect of the

definitional statute is the basis for the refund argument, not the constitutional

law decision in Herman & Kittle, which confirmed that Hammond (along with

every other city) was disqualified from the Fee Exemption.

[30] Consequently, we asked the parties to tender supplemental briefing to refine the

arguments on the central issue of the case, whether the 2015 legislative

amendment to the statute triggered a refund obligation, particularly in light of

the United States Supreme Court’s decision in Armour v. City of Indianapolis,

Ind., 566 U.S. 673 (2012). Here, as in Armour, the Landlords complain that

they are being treated differently—by not receiving refunds after paying the fees

in full—than landlords like Herman & Kittle, who protested the fees or did not

pay the fees and those that had their obligations forgiven through a grant of

amnesty.

[31] “‘Statutory interpretation is a function for the courts, and our goal in statutory

interpretation is to determine, give effect to, and implement the intent of the

legislature as expressed in the plain language of its statutes.’” Brewer v. Clinton

Court of Appeals of Indiana | Opinion 24A-PL-2312 | March 2, 2026 Page 18 of 31
Cnty Sheriff’s Office, 206 N.E.3d 1158, 1164-65 (Ind. Ct. App. 2023) (quoting

Clark Cnty. Drainage Bd. v. Isgrigg, 966 N.E.2d 678, 681 (Ind. Ct. App. 2012)),

trans. denied. “‘When a statute is clear and unambiguous, we apply the rules of

statutory construction and interpret statutory language in its plain, ordinary,

and usual sense.’” Id. at 1165 (quoting Cnty. of Lake v. Pahl, 28 N.E.3d 1092,

1104 (Ind. Ct. App. 2015), reh’g denied, trans. denied). “‘However when a statute

is susceptible to more than one interpretation it is deemed ambiguous and thus

open to judicial construction.’” Id. (quoting City of N. Vernon v. Jennings Nw.

Regional Utils., 829 N.E.2d 1, 4 (Ind. 2005)). “When construing a statute, ‘we

do not presume that the Legislature intended language used in a statute to be

applied illogically or to bring about an unjust or absurd result.’” Id. (quoting

City of N. Vernon, 829 N.E.2d at 5). “We do, however, presume the language in

a statute was ‘used intentionally’ by the Legislature.” Id. (citing Burks v.

Bolerjack, 427 N.E.2d 887, 890 (Ind. 1981) (“The language employed in a

statute is deemed to have been used intentionally.”). And “[t]hese statutes []

come to us ‘clothed with the presumption of constitutionality until clearly

overcome by a contrary showing.’” Horner v. Curry, 125 N.E.3d 584, 588 (Ind.

2019) (quoting Whistle Stop Inn, Inc. v. City of Indianapolis, 51 N.E.3d 195, 199

(Ind. 2016) (internal quotations omitted)).

A. Armour v. City of Indianapolis, Ind.
[32] The United States Supreme Court confronted a straightforward question in

Armour v. City of Indianapolis: when a government changes how it collects

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money, must it refund what it already collected under the old system? The

Court said no. 566 U.S. 673, 681 (2012).

[33] In Armour, Indianapolis had funded sewer projects by assessing costs to abutting

homeowners, who could pay in full or in installments. Id. at 676. When the

City adopted a new financing method, it forgave all remaining installment

obligations but did not refund payments already made. Id. at 678-79.

Homeowners who had paid in full sued, claiming unequal treatment. Id. at

679. The Supreme Court held that the City had a rational basis for drawing a

line between past payments and future obligations — a distinction the Court

called “well known to the law.” Id. at 683-84. The Court also recognized that

processing refunds would impose administrative costs and require diverting

funds from other programs. Id. at 683.

[34] Guided by the analysis in Armour, we turn to what the legislature provided for

here. At the time Hammond collected the 2015 registration fees, it was

operating under the Fee Exemption—a provision no court had yet questioned

and no statute had yet withdrawn. The fees funded the ongoing operation of

Hammond’s registration and inspection programs, and the Landlords paid them

without protest. The legislature then enacted the definitional statute, which

disqualified Hammond from the Fee Exemption going forward. But the

legislature did not include a refund provision. It did not direct municipalities to

return fees previously collected. And it did not create any mechanism for

landlords to recover past payments. That silence is significant. Here, the

statute provides no such basis.

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[35] Moreover, as in Armour, there is a rational basis for the differential treatment of

landlords who paid before the statutory change and those who had not. The

fees Hammond collected were not sitting in a segregated account awaiting

disposition—they funded program operations already underway. Requiring

Hammond to process refunds would necessitate identifying which landlords

overpaid, calculating individual refund amounts for potentially hundreds of

rental units, and diverting public funds from current programs to cover those

obligations. The Supreme Court recognized in Armour that a government may

rationally decline to take on that burden. Id. at 683. We see no reason to reach

a different conclusion here.

B. Statutory Relief
[36] The Landlords argue that the holdings from Armour are inapplicable and that

the case is distinguishable primarily because there is no equal protection

challenge in the present case. Appellants’ Supp. Br. pp. 4-8. Hammond argues

that Armour is applicable and, when applied, leads to the conclusion that

“providing ‘amnesty’ for unpaid amounts while not requiring refunds of

previously paid amounts is [a] rational and constitutional” justification for

Hammond’s decision. Appellee’s Supp. Br. p. 5. Regardless of how the legal

issues are framed, at its core, the Landlords’ argument challenges Hammond’s

decision not to issue refunds, much like the homeowners’ challenge of the

City’s decision not to issue refunds in Armour, when others, such as Herman &

Kittle, had not paid and their fees were now forgiven.

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[37] With the Armour analysis as a reference, we turn to what the legislature

provided for through the recent statutory amendment process. “The refund of

taxes being generally a matter of governmental grace, the State has the

authority to provide by statute thereof.” R.B. Raybern & Co. v. Ind. Emp. Sec. Bd.,

232 N.E.2d 891, 893 (Ind. Ct. App. 1968). What the legislature did not do

here, in any of the amendments or additions, is explicitly provide for a refund,

or as in Armour, explicitly declare that there would be no refunds. If it had

provided for a refund, that language would have conflicted with Indiana Code

section 36-1-20-3, which requires that “[a]ny fee assessed and collected by a

political subdivision pertaining exclusively to a rental unit or rental unit

community must be maintained in a special fund dedicated solely to

reimbursing the costs actually incurred by the political subdivision relating to

the imposition and amount of the fee.” “Each fund shall be maintained as a

separate line item in the political subdivision’s budget.” Id. “Money in the

fund may not at any time revert to the general fund or any other fund of the

political subdivision.” Id. Thus, the absence of refund language is consistent

with legislative regulation of rental registration and inspection programs. And

since the fee had to bear a relation to the cost of Hammond’s obligation for

inspection, a refund would require others totally unrelated to the controversy to

fund the refund. In other words, the fee had already compensated Hammond

for its inspection obligation, meaning that the funds for a refund would have to

come from Hammond’s general fund.

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C. Tort Remedy
[38] As we stated in 6232 Harrison, “[a] claim for a refund following an alleged

overpayment of a government assessment ‘sounds in tort’ and, thus, must be

claimed following the procedures of the ITCA.” 181 N.E.3d at 384. And at its

core, the argument the Landlords present is that they overpaid based on their

interpretation of the statutory framework after the 2015 legislative amendments.

Yet the funds at the time they were paid were not voluntary but required under

the then-existing legislation. It was not until the legislative amendment that the

issue of overpayment came into question. However, Hammond has not

committed a tort.

[39] “Under traditional tort doctrines a violation of a statutory or constitutional

obligation may give rise to a civil damage claim. This doctrine is expressed in

section 874A of the Second Restatement of Torts[.]” Cantrell v. Morris, 849

N.E.2d 488, 497 (Ind. 2006). Section 874A provides:

When a legislative provision protects a class of persons by
proscribing or requiring certain conduct but does not provide a
civil remedy for the violation, the court may, if it determines that
the remedy is appropriate in furtherance of the purpose of the
legislation and needed to assure the effectiveness of the provision,
accord to an injured member of the class a right of action, using a
suitable existing tort action or a new cause of action analogous to
an existing tort action.

Restatement (Second) of Torts §874A (1979). And one of the factors to

consider in determining whether the court should provide a tort remedy is

whether the legislative provision “clearly let both the court and the actor know
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in advance what conduct is prohibited.” Restatement (Second) of Torts §874A,

comment h(1) (emphasis added).

[40] Quite clearly, Hammond did not commit a tort by charging the 2015

registration fees under the Fee Exemption, because it did not know in advance

that subsequent legislative amendments would prohibit it from charging more

than the $5 Fee Restriction amount going forward. Up to April 15, when the

assessed fees were due, they were valid because the legislative change had not

yet been passed or enacted.

[41] The Landlords cite to Shoemaker v. Bd. of Cmm. of Grant Cnty., 36 Ind. 175 (1871)

in support of their position that the fees paid in 2015 excess of $5 were illegally

and wrongfully collected and, thus, should be refunded. Appellants’ Supp. Br.

p. 9. Shoemaker held that “[i]f the money was illegally and wrongfully collected

from the owners of real estate, it belongs to them and not to the board of

commissioners of said county.” 36 Ind. at 183. However, under Shoemaker, the

fees have to be illegally collected. In the present case, Hammond had the right

to collect the registration fees due by April 15. Thus, Shoemaker is unhelpful

here.

D. Retroactive Application
[42] Next, we address the Landlords’ argument that the retroactive effect of the

statutory change to the definition of rental registration or inspection program,

I.C. § 36-1-20-1.2, triggers a refund obligation on Hammond’s part.

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[43] “Absent explicit language to the contrary, statutes generally do not apply

retroactively. But there is a well-established exception for remedial statutes.”

N.G. v. State, 148 N.E.3d 971, 973 (Ind. 2020) (internal citation omitted). A

remedial statute is one that cures a defect or mischief in the prior law. Id. But,

when the legislature passes a remedial statute, “retroactivity is permissive, not

mandatory.” Id. “[W]e employ a two-step analysis to determine whether an

otherwise prospective statute applies retroactively. We first decide whether the

relevant law is remedial. If so, we then consider whether retroactive application

would effectuate the statute’s legislative purpose.” Id. at 974. If the statute’s

legislative purpose is served by retroactive application of the statute, a strong

and compelling reason exists to apply the statute retroactively. Id.

“[R]etroactive application is not appropriate if it would violate a vested right or

constitutional guaranty.” Id. at n.1. “In order for a right to vest or a liability to

be incurred it must be ‘immediate, absolute, complete, unconditional, perfect

within itself and not dependent upon a contingency.” Foley v. Consolidated City

of Indianapolis, 421 N.E.2d 1160, 1168 (Ind. Ct. App. 1981) (quoting Martin v.

Simplimatic Eng’g Corp., 390 N.E.2d 235, 237 (Ind. Ct. App. 1979)).

[44] The statute at issue, Indiana Code section 36-1-20-1.2 reads as follows: “As

used in this chapter, ‘rental registration or inspection program’ means a

program authorizing the registration or inspection of only rental housing. The

term does not include a general housing registration or inspection program or a

registration or inspection program that applies only to rooming houses and

hotels. As added by P.L. 65-2015, SEC.1, eff. Jan. 1, 2015.” That statute, read

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in conjunction with the Fee Exemption statute, eliminated Hammond’s

programs from the Fee Exemption. And the definitional statute was passed

after Hammond collected the 2015 fees. The Supreme Court’s decision in

Herman & Kittle confirmed what the legislature did when it excluded Hammond

from the Fee Exemption. The legislature eliminated Hammond from the Fee

Exemption by passing the definitional statute, Indiana Code section 36-1-20-

1.2. Herman & Kittle eliminated the Fee Exemption for all cities, including

Hammond, when it found the Fee Exemption to be unconstitutional special

legislation. At least as to Hammond, the Supreme Court decision, regarding

Hammond’s $5.00 limit, made no changes as to what Hammond could charge

post legislative amendments.

[45] The Landlords contend that the legislature intended to provide for refunds by

passing the new definitional section with retroactive effect to January 1, 2015.

They maintain that the only inference that can be drawn from that legislative

action was to allow for refunds of payments made in excess of the Fee

Restriction’s $5.00. The Landlords also suggest that the retroactive effect acted

as a repeal of the Fee Exemption as to Hammond. They cite various cases to

support their positions. See McQuilkin v. Doe ex dem. Stoddard, 8 Blackf. 581,583-

84 (1847) (repealed statute “must be considered (except as to transactions passed

and closed), as if it had never existed.”) (emphasis added); Shoemaker, 36 Ind.

175, 183-84 (1871) (illegal tax collected by the State, and [] paid into the state

treasury” is held “in trust for the persons who paid it.”; “If the money . . . was

paid under protest to avoid such sale, the State becomes the legal trustee[.]”)

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(emphasis added); 405 Co. v. State, 460 N.Y.S.2d 455, 457 (N.Y. Ct. Cl. 1983)

(state collected tax pursuant to a statute later repealed retroactive to the date of its

enactment deemed to never have existed) (emphasis added); Neal v. United States,

1998 U.S. Dist. LEXIS 12048 at *23 (W.D. Pa. 1998) (tax statute repealed

retroactively to its date of enactment, refund allowed) (emphasis added); AgMax,

Inc. v. Countrymark Co-op, Inc., 661 N.E.2d 1259, 1262 (Ind. Ct. App. 1996)

(“repeal of a law obliterates its effect”); City of Gary v. Indiana Bell Tel. Co., 732

N.E.2d 149 (Ind. 2000) (ordinance to charge fee which was not yet collected

found to be impermissible charge as of date legislature subsequently amended

statute prohibiting fee) (emphasis added). Each of these cases are factually

distinguishable from this case. The legislature’s decision to remove Hammond

from the Fee Exemption by enacting the definitional statute did not repeal a

law.

[46] And the Landlords’ premise for the statutory construction it advances is neither

viable nor proper public policy. The charged fees fund the operation of the

registration and inspection programs and are to be kept separately from the

general fund. Hammond could only charge the actual cost, and those funds are

spent. In Armour, there was a better case for the award of refunds. Some of the

taxpayers had paid in advance for future expenses. In other words the funds

had not necessarily been spent. But, a rational basis was found for denying the

refunds there. If that is true, there is a stronger rational basis for denying the

refunds here.

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[47] Further, new laws are presumed to be operate prospectively, unless explicitly

stated otherwise, or are remedial. Anything other than prospective application

would cause additional administrative expenses to calculate the refunds. In

addition, payment of the refunds would have to be subsidized by taxpayers who

are not part of the rental property scheme. The prospect of the future

nullification of an existing law is no excuse for not complying with the law that

exists at the time of the action in question. If that were the case, no one could

safely rely on or enforce existing laws because they might be changed.

[48] Here, the change in the definitional statute is not remedial. It does not cure a

defect or mischief in the prior law. As such, the exception to the general rule

that statutes apply prospectively is inapplicable here. The only reasonable

inference that can be drawn from the legislature’s decision to make the statute’s

effective date retroactive to January 1, 2015, is to provide amnesty for those

landlords, such as Herman & Kittle, who had not paid the registration fees

before the enactment of the definitional statute and Fee Exemption statute was

declared unconstitutional.

[49] And there is a rational basis for different treatment of those who had paid the

fees before the definitional statute was added. As in Armour, the administrative

expenses in determining who qualified for the refunds would be high. The

money to pay for the refunds would have to be drawn from other aspects of

Hammond’s budget. Furthermore, the legislature did not provide a mechanism

for seeking or issuing refunds. Instead, the collected funds were to be placed in

a special fund. Placing the collected funds in the general fund was explicitly

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prohibited. I.C. § 35-1-20-3. The retroactive effect of the definitional statute,

Indiana Code section 36-1-20-1.2, does not trigger a refund obligation.

[50] The Landlords had several available options. They could have not paid and

protested, like Herman & Kittle, or they could have paid under protest. They

chose to pay and not protest until after the definitional statute was enacted.

Herman & Kittle protested before the definitional statute was enacted.

[51] The essence of this case can be boiled down into its most simple parts. The

Landlords’ request for repayment must first be analyzed by examining how the

statute and its legislative amendments set the stage for the specific inquiry. The

statute contains two relevant sections. One section, the Fee Restriction, set the

cap (the maximum amount that may be charged) for the registration and

inspection. The second section, the Fee Exemption, defines who is excluded

from that cap and allows the governmental entity to charge whatever that entity

believes is a proper charge. The statutory revisions did not change the section

dealing with the cap itself. The revisions, adding the definitional statute,

removed Hammond from the definition of who was excluded from the cap.

Thus, once the statutory revisions became law, Hammond was therefore subject

to the cap just like almost every other entity.

[52] The Supreme Court decision in Herman & Kittle found the statutory provisions

setting the cap to be constitutional, but found the exclusion was

unconstitutional. However, since Hammond had already been removed from

the cap exclusion section of the statute, the Supreme Court decision had no

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impact on Hammond. The decision merely confirmed what the legislature had

done. Hammond remained in the same position before and after the Supreme

Court decision.

[53] The specific question raised relates to the provision of the definitional statute

back dating the effective date to a date before the Landlords had paid their

obligation. In other words, what did the legislature mean by the retroactivity?

We find the answer in statutory interpretation and in guidance from Armour.

Under the circumstances in the instant case, the retroactivity in the statute does

not require Hammond to repay the moneys that the Landlords are seeking.

[54] We affirm the trial court.

Conclusion
[55] Based on the foregoing, we conclude that the trial court did not err by denying

the Landlords’ motion for summary judgment and granting Hammond’s cross-

motion for summary judgment. The legislature’s 2015 amendment to the

definitional statute, Indiana Code section 36-1-20-1.2, applied prospectively and

is not remedial in nature. It therefore does not operate retroactively to create a

refund obligation for fees that were lawfully collected before its enactment.

Had the legislature intended to mandate refunds of previously collected

registration fees, it could have expressly provided for that remedy—but it did

not. Hammond was entitled to judgment as a matter of law.

[56] Affirmed.

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May, J., and Brown, J., concur.

ATTORNEYS FOR APPELLANTS
David W. Stone IV
Stone Law Office & Legal Research
Anderson, Indiana

Jonathan D. Petersen
Munster, Indiana

ATTORNEYS FOR APPELLEE
Bryan H. Babb
Bradley M. Dick
Bose McKinney & Evans LLP
Indianapolis, Indiana

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