FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MATTHEW M. PRICE GREGORY F. ZOELLER
SHANNON D. LANDRETH Attorney General of Indiana
Bingham Greenbaum Doll, LLP
Indianapolis, Indiana ELIZABETH ROGERS
Deputy Attorney General
Indianapolis, Indiana
Apr 26 2013, 8:24 am
IN THE
COURT OF APPEALS OF INDIANA
LEBAMOFF ENTERPRISES, INC., )
)
Appellant-Petitioner, )
)
vs. ) No. 49A02-1210-MI-826
)
INDIANA ALCOHOL & TOBACCO )
COMMISSION, )
)
Appellee-Respondent, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable John F. Hanley, Judge
The Honorable Christopher Haile, Magistrate
Cause No. 49D11-1202-MI-8272
April 26, 2013
OPINION - FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
Lebamoff Enterprises, Inc. (“Lebamoff”), appeals the trial court’s dismissal of its
petition for judicial review. Lebamoff raises three restated issues for our review: 1)
whether the trial court erred in dismissing Lebamoff’s petition for failure to file the
agency record in a timely fashion; 2) whether, excluding the agency record, Lebamoff
submitted sufficient materials for judicial review; and 3) whether deficiencies in the
administrative law judge’s (“ALJ”) findings of fact require that the case be remanded.
Concluding that Lebamoff did fail to timely file the agency record, but that the original
submission contained sufficient material to enable judicial review, we reverse and
remand.
Facts and Procedural History
Lebamoff is an Indiana corporation that operates liquor stores in northern Indiana
and holds a liquor dealer permit, the scope of which is detailed at Indiana Code section
7.1-3-10-7. Beginning in 2008, the Indiana Alcohol and Tobacco Commission (“ATC”)
issued six citations to Lebamoff alleging violations of its permit, stemming from
Lebamoff’s use of common carriers to transport product to customers for sales generated
through fulfillment companies.
Lebamoff appealed the citations. Following a hearing in November 2011, the ALJ
issued findings of fact and conclusions of law on January 18, 2012, concluding that
Lebamoff had violated the statute by using common carriers. The ALJ recommended
that Lebamoff be fined one thousand dollars for each violation and that Lebamoff’s
permit be suspended for sixty days, with the suspension to be deferred for one year on the
condition that all fines were paid and Lebamoff did not accrue any further violations
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during the deferral period. The ATC approved the recommendations and issued its final
order on February 7, 2012.
On February 29, 2012, Lebamoff filed a petition for judicial review, appealing the
ATC’s final order. On March 28, 2012, the ATC filed its answer, and on April 10, 2012,
the ATC filed a motion to dismiss for failure to file an agency record. On May 17, 2012,
Lebamoff received and filed the certified agency record. On June 29, 2012, the trial court
held a hearing on the motion to dismiss. On September 20, 2012, the trial court granted
the ATC’s motion to dismiss. This appeal followed. Additional facts will be provided as
necessary.
Discussion and Decision
I. Standard of Review
Judicial review of administrative decisions is governed by the Administrative
Orders and Procedures Act (“AOPA”). Ind. Code § 4-21.5-2-0.1. The standard of
appellate review for motions to dismiss depends on whether the trial court resolved
disputed facts, and if so, whether there was an evidentiary hearing. Wayne Cnty. Prop.
Tax Assessment Bd. of Appeals v. United Ancient Order of Druids-Grove No. 29, 847
N.E.2d 924, 926 (Ind. 2006). Where, as here, the trial court ruled on a paper record, we
review the motion to dismiss de novo. Id.
II. Submission of Agency Record
The issue here revolves around Lebamoff’s failure to, within thirty days of filing
its petition for review, either file the agency record or file a motion for extension of time
in which to file the record. The AOPA requires that “[w]ithin thirty (30) days after the
filing of the petition, or within further time allowed by the court or by other law, the
3
petitioner shall transmit to the court the original or a certified copy of the agency record
for judicial review of the agency action . . . .” Ind. Code § 4-21.5-5-13(a). A petitioner
can request an extension of time in which to file the agency record, but that request must
be made within the initial thirty day window, and nunc pro tunc extensions are not
allowed. Ind. Family & Soc. Servs. Admin. v. Meyer, 927 N.E.2d 367, 370-71 (Ind.
2010). The AOPA further provides that extensions of time shall be granted where good
cause is shown, and that an “[i]nability to obtain the record from the responsible agency
within the time permitted by this section is good cause.” Ind. Code § 4-21.5-5-13(b).
The ATC concedes that, had Lebamoff filed for an extension of time, the court would
have granted it, because the agency record was not made available to Lebamoff until
nearly three months after Lebamoff’s petition was filed.
However, no extension of time was granted by the court because Lebamoff never
officially requested one. Lebamoff contends that while it did not file a motion for
extension of time, it followed the spirit of the statute by including in its petition a
statement that it would, to comply with Indiana Code section 4-21.5-5-13, transmit the
agency record within thirty days after having received notification that the ATC had
prepared the record. Lebamoff notes that the ATC did not object to this proposal in its
answer. Lebamoff argues that its inclusion of this proposal within the petition, rather
than as a separate motion, advances judicial efficiency by obviating the need to file serial
extensions of time while waiting for the record to be prepared, and therefore that
dismissal of its petition raises form above function. Lebamoff further argues that there is
a “clear intent for automatic extensions when a petitioner does not even have the
administrative record to file.” Reply Brief of Appellant at 5.
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We disagree that the legislature’s intention was to permit automatic extensions.
The clear language of the statute provides that an extension must be granted by the court
or other law in order for a petitioner to transmit the agency record more than thirty days
after filing a petition. Ind. Code § 4-21.5-5-13. Had the legislature intended to grant
automatic extensions where the agency has delayed in preparing the record, or to have
transmission of the record be due based on the date that the record was prepared by the
agency, rather than the filing date of the petition, it could have done so. See Ind. Tax
Court Rule 3(E) (allowing transmission of the agency record within thirty days after
petitioner receives notice that the record has been prepared); see also Ind. Pub. Emp. Ret.
Fund v. Bryson, 977 N.E.2d 374, 377 (Ind. Ct. App. 2012) (“Where the language of the
statute is clear and unambiguous, there is nothing to construe.”), aff’d on reh’g, 983
N.E.2d 172 (Ind. Ct. App. 2012). Requiring a petitioner to request and be granted an
extension leaves it in the court’s hand to determine whether good cause has been shown.
As for judicial efficiency, we agree that minimizing superfluous motions is
generally desirable. However, we do not agree that filing for an extension in this case
would necessarily have been inefficient. In fact, in light of the proceedings that have
ensued—which could have been avoided if Lebamoff had filed for an extension—it
seems that the opposite is true. Viewed narrowly, we understand Lebamoff’s argument
that requesting an extension here could be seen as wasteful, when a submission timeline
was proposed in the petition and when any extension request would have been granted for
good cause based on the ATC’s delay in preparing the record.1 However, taking a larger
1
Lebamoff’s petition in part cites to Wayne Cnty, 847 N.E.2d 924, for the proposition that serial
extensions create additional work and cost for the court and parties. However, that case involved Indiana Tax Court
Rule 3(E), which fell under the “allowed . . . by other law” exception within the AOPA, and allows petitioners in tax
5
view, the more efficient tactic is to simply request an extension. Doing so provides a
record for the court and all parties as to what has been requested, what has been granted,
and what deadlines have been set. Under Lebamoff’s scheme of including a proposal in
the petition, rather than filing for an extension, the court and parties must read through
the entire petition and other filings to see whether an extension has been “requested,”
then look to see whether the other party has objected to it in some way, and if it has not,
then to apparently assume that an indefinite extension has been “granted” by the court. It
is neither efficient nor fair to require the court and other parties to sift through the petition
and other filings and guess at how they might be substituting for various other requests
and motions. Lebamoff did not file the agency record within thirty days, nor did it
request an extension of time. Failure to do so was an acceptable basis for dismissal of the
case. See Ind. Code § 4-21.5-5-13(b).
We note here that we are unimpressed with the ATC’s delay in preparing the
record, followed by a motion to dismiss the case for Lebamoff’s failure to timely file that
same record. The ATC acknowledges that Lebamoff included a proposed timeline for
submission in its petition, and both parties agree that Lebamoff would have been granted
an extension for filing the record if one had been requested. It seems harsh and
unnecessary for the ATC to use a procedural requirement this way, when the deadline
only came into play because of the ATC’s delay in preparing the record. While, as
outlined above, the filing of a request for extension plays a valuable role in the larger
context and moreover is required by the statute, the ATC was hardly being harmed by a
court to do just what Lebamoff tried to do here. Ind. Code § 4-21.5-5-13(a); Wayne Cnty, 847 N.E.2d at 928. It
was not within Lebamoff’s power to apply that rule to its case, which was not before the tax court.
6
delay in filing the record where the ATC itself was the cause of that delay. We believe
the onus was on Lebamoff to file an extension, but the actions of the ATC here are of the
sort that would begin to lend support to concerns that the AOPA could in some cases be a
“trap” for unwary litigants. See Mosco v. Ind. Dep’t of Child Servs., 916 N.E.2d 731,
735 (Ind. Ct. App. 2009), trans. denied.
III. Sufficiency of Original Submission
Despite the fact that dismissal was possible due to Lebamoff’s failure to timely
file the record or request an extension of time, our review is de novo, and dismissal was
not mandatory. See Reedus v. Ind. Dep’t of Workforce Dev., 900 N.E.2d 481, 487 (Ind.
Ct. App. 2009) (concluding that in drafting the AOPA the legislature intended to
“empower, but not require, a trial court to dismiss an appeal” when a petitioner failed to
strictly comply with Indiana Code section 4-21.5-5-13) (emphasis in original). If
extensions of time may not be granted if not requested within the initial thirty-day
window, and nunc pro tunc extensions are not allowed, but dismissal is not required
where a petitioner fails to timely file the record or request an extension, then there must
be some—likely limited—ways in which a case can move forward even without a timely
record being filed. One way perhaps would be to accept a belated record even where an
official extension has not been granted. In our own court of appeals, briefs and records
are sometimes accepted late even without an express grant of extension, because the
filing of briefs and records is not jurisdictional, unlike the filing of a notice of appeal.
Additionally, “Indiana law strongly prefers disposition of cases on their merits.” Coslett
v. Weddle Bros. Constr. Co., Inc., 798 N.E.2d 859, 861 (Ind. 2003). As with records
7
filed in appeals to our court, our supreme court has held that the filing of the record in an
administrative review case is not jurisdictional. Wayne Cnty., 847 N.E.2d at 926.
We recognize that our supreme court was recently evenly divided on the issue of
whether a trial court may proceed with a case where the agency record was not timely
filed, but the submitted materials contained sufficient facts on which a determination
could be made.2 Meyer, 927 N.E.2d 367. Indiana Code section 4-21.5-5-13(a) provides
an overview of the document types that should be included in the agency record that the
petitioner files with the reviewing court, including “any other material” described in that
article for the type of action at issue. Indiana Code section 4-21.5-3-33 details some of
the specific documents of which the agency record should consist. While generally,
submitting only selected documents is insufficient to comply with the requirements of the
AOPA, we have acknowledged in the past that providing less than all of the listed
documents may nonetheless be sufficient for judicial review, depending on the particular
case at hand. See Meyer, 927 N.E.2d at 371 (citing cases).
In Meyer, the appealed issue was a question of fact revolving around the valuation
of some property. In that case, the agency admitted to error in its answer. Two of the
participating justices determined that, in light of the agency’s admission, the submitted
documents were sufficient for review even without the full agency record. Id. at 372.
The other two participating justices disagreed, arguing that an agency record is required
for judicial review, and that holding otherwise would lead to future contests over whether
a submitted record is “complete enough” for review. Id. at 374. Further, the disagreeing
2
Justice Sullivan did not participate in the decision, and the remaining four justices were evenly split on
the outcome of this issue.
8
justices noted that in that particular case, if the court dismissed the case, the case would
nonetheless be reviewed by a Medicare county office and thus that the petitioner would
“receive all the further consideration to which the Court says she is entitled.” Id. It is not
clear to what extent that fact influenced the decision of the disagreeing justices, and
whether they would have held differently had their decision been the end of the line for
that petitioner.
This case is somewhat different from Meyer, in that the question at issue here—
whether Lebamoff’s use of common carriers complies with the requirements of the
statute—is a pure question of law. To the extent that any facts were necessary, they were
included in the sparse findings of fact and conclusions of law written by the ALJ, which
were submitted by Lebamoff with its petition; for example, the findings of fact noted that
Lebamoff held a liquor permit, and the statutory section under which that permit was
held. Because the question here is a question of law regarding the interpretation of the
statute as it concerns use of common carriers, and there were no disputed facts, the
limited findings of the ALJ were sufficient to allow judicial review of the issue, even in
the absence of the agency record.
The ATC argues that Lebamoff’s submission was insufficient without the agency
record, but points to nothing in the record that would be required for review. The ATC
mentions transcripts of the ALJ hearing and copies of excise police citations, but does not
indicate how these documents would have aided judicial review on a question of law.
We agree that the best practice is to timely file the entire agency record regardless of the
nature of the case. However, here, the record simply was not necessary for review, and
the submitted materials are sufficient to permit review of the case on the merits. Failure
9
to timely file the record is “cause for dismissal” under Indiana Code section 4-21.5-5-13,
but cause for dismissal does not mean that the case must be dismissed, especially where,
as here, the record was not required for a ruling. For that reason, we reverse and remand
the case for resolution on the merits.
IV. ALJ’s Findings of Fact
Lebamoff finally argues that the dearth of facts in the ALJ’s findings of fact and
conclusions of law render the order so deficient that this case should be remanded back to
the ATC to address those deficiencies. Were this a case that required facts for its
resolution, we would likely be inclined to agree with Lebamoff, as deficient findings of
fact can render the matter unreviewable by a court, and the ALJ’s findings here were
severely limited. See Pack v. Ind. Family & Soc. Servs. Admin., 935 N.E.2d 1218, 1227-
28 (Ind. Ct. App. 2010) aff’d on reh’g, 940 N.E.2d 369 (Ind. Ct. App. 2011). Given our
resolution of the record issue above, we conclude here that the limited facts included in
the order are sufficient for the question of law at hand, and do not render the order
impermissibly deficient.
Conclusion
Concluding that Lebamoff did not meet the timing requirements of the AOPA with
regard to filing of the agency record, but that the materials submitted with the petition
were sufficient for judicial review of the question of law at issue, we reverse and remand
to the trial court for resolution of the issue on the merits.
Reversed and remanded.
VAIDIK, J., concurs.
KIRSCH, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
LEBAMOFF ENTERPRISES, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A02-1210-MI-826
)
INDIANA ALCOHOL & TOBACCO )
COMMISSION, )
)
Appellee-Respondent. )
KIRSCH, Judge, dissenting.
I respectfully dissent.
The Administrative Orders and Procedures Act as adopted by our General Assembly is
the exclusive means for judicial review of an administrative action. Ind. Code § 4-21.5-5-1. It
provides that
Within thirty (30) days after the filing of the petition, or within further time
allowed by the court or by other law, the petitioner shall transmit to the court the
original or a certified copy of the agency record for judicial review of the agency
action.
Ind. Code § 4-21.5-5-13(a) (emphasis added).
In the event that the agency record cannot be filed within the allotted thirty-day time
period, the Act provides that “[a]n extension of time in which to file the record shall be granted
by the court for good cause shown. Ind. Code § 4-21.5-5-13(a) (emphasis added). Specifically
included within “good cause” sufficient to secure an extension of time is the “[i]nability to
obtain the record from the responsible agency within the time permitted by this section is good
cause.” Id.
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Finally, the Act states that failure to file the record within the time permitted by this
subsection, including any extension period ordered by the court, is cause for dismissal. Id.
The mandates of the Administrative Orders and Procedures Act as adopted by our
General Assembly are clear. The Appellant simply failed to follow them. It failed to file the
agency record within the time period set forth in the Act, and it failed to seek an extension of that
time. That failure was cause for dismissal, and accordingly, I would affirm the trial court’s
dismissal.
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