Weiss v. Indiana Family & Social Services Administration, Division of Disability, Aging & Rehabilitative Services

SULLIVAN, Judge,

dissenting

The issue of Indiana eligibility was “necessarily” and “expressly” adjudicated in the December 1, 1997 hearing. See Mendenhall v. City of Indianapolis (1999) Ind.App., 717 N.E.2d 1218, trans. denied.

The final agency determination made on December 23, 1997, was that Weiss was eligible for Indiana Vocational Rehabilitative services. In its Findings of Fact, the trial court specifically acknowledged this determination. This was almost three months before the second hearing on March 23, 1998, at which the majority concludes the eligibility issue was litigated for the first time.

The December 1997 agency ruling as to Indiana eligibility was made in the full knowledge that Weiss, as an Arizona resident, was the beneficiary of in-state tuition at Arizona State University. Having so determined the matter of eligibility, that decision was res judicata. The State may not now successfully claim that Weiss was, as of March 1998, ineligible based upon his Arizona in-state tuition status.

*408I would reverse and remand with instructions to enter judgment for Mr. Weiss.