Seattle Painting Co. v. Commissioner of Labor

STATON, Judge,

dissenting.

This case presents an issue of first impression: whether the filing of a petition for judicial review and a copy of the administrative order is a sufficient “record” under IND. CODE § 4-21.5-5-13 (1993). Because the majority dismisses Seattle Painting’s petition for lack of subject matter jurisdiction without: (1) allowing for corrections or modifications pursuant to IC § 4 — 21.5—5—13(g); and (2) determining whether the petition for judicial review and the administrative order are a sufficient manifestation of the error complained of, I dissent.

I.

IC § i-21.5-5-13

The majority concludes that because Seattle failed to file any of the documents set forth in IC § 4-21.5-5-13(a), it did not tender an agency record as defined by the statute. At 597. However, the statute does not address the penalty, if any, for failure to tender a complete record and it only warrants dismissal of a petition when the party fails to file the record within the allotted time.3 See IC § 4-21.5-5-13(b). There is no mention anywhere in the statute that the failure to file an incomplete record is cause for dismissal.

Additionally, subsection (g) of IC § 4r-21.5-5-13 provides:

Additions to the record concerning evidence received under section 12 [IC § 4-21.5-5-12] of this chapter must be made as ordered by the court. The court may require or permit subsequent corrections or additions to the record.

The majority concludes that this subsection was intended only to apply to evidence received pursuant to IC § 4-21.5-5-12(a), which permits the inclusion of additional evidence which could not, by due diligence, have been discovered and raised during the administrative hearing, or for minor additions or corrections. At 597-98. However, I disagree with the majority’s interpretation that *599subsection (g) applies only in that limited instance.

When interpreting a statute, we must remember a statute is to be construed as a whole, giving the words their common and ordinary meaning and not overemphasising a strict literal or selective reading of individual words. Albright v. Pyle, 637 N.E.2d 1360, 1363 (Ind.Ct.App.1994). Only the first sentence of subsection (g) deals with the additional evidence encompassed by IC § 4-21.5-5-12; the second sentence contains no such limitation. Based upon that distinction, I conclude that the second sentence permits the trial court to require or allow subsequent corrections or additions to the record beyond those situations arising under IC § 4-21.5-5-12. Moreover, the second sentence does not limit such changes to only minor additions or corrections as the majority suggests.

As a result, absent any express statutory language warranting dismissal for failure to tender a complete record and in conjunction with the second sentence of subsection (g), the trial court should permit a party to make additions or modifications to the record, prior to entering the harsh result of dismissal of the case for lack of subject matter jurisdiction.

II.

Sufficiency of Tendered Materials

The Indiana Supreme Court has determined that an incomplete record will not deprive the court of jurisdiction. See Indiana Real Estate Commission v. Kirkland, 256 Ind. 249, 268 N.E.2d 105 (1971) (record which was not certified and did not contain a separate copy of the Commission’s order was not fatal as to deny the trial court of jurisdiction as contents of the court order were set forth in petition for judicial review). Moreover, the Indiana Supreme Court has recently stated that even where a narrow statutory remedy is given and the assertion of such a remedy must be strictly followed in order for the trial court to obtain jurisdiction, the petitioner has no affirmative duty to do anything more than what is statutorily required. See Shipshewana Convenience Corp. v. Board of Zoning Appeals of LaGrange County, 656 N.E.2d 812, 814-815 (Ind.1995) (absent express statutory requirement to do so, party’s failure to request order to show cause does not deprive trial court of jurisdiction to entertain appeal).

When reviewing an administrative agency’s decision, general rules of appellate procedure are binding upon persons appealing from decisions of administrative agencies and it is the obligation of the appellant to tender a record sufficient to manifest the error complained of. Ladd v. Review Bd. of Ind. Employment Security Div., 150 Ind.App. 632, 276 N.E.2d 871, 875 (1971) (emphasis added) (record which did not contain evidence regarding error complained of should be modified pursuant to Ind. Appellate Rule 7.2(C)).

An incomplete or erroneous record may be corrected through the procedures provided by Ind. Appellate Rule 7.2(C). Willett v. Review Board, 632 N.E.2d 736, 740 (Ind.Ct.App.1994), trans. denied. The rule states in pertinent part:

If anything material to either party is omitted from the record or is misstated therein, the trial court shall
(1) either before or after the record is transmitted to the court on appeal, or
(2) upon the order of the court of appeal pursuant to the motion of a party or on its own initiative, correct the omission or misstatement and if necessary certify and transmit a supplemental record. Incompleteness or inadequacy of the record shall not constitute a ground for dismissal of the appeal or preclude review on the merits.

(Emphasis added). The intent of App.R. 7.2(C) is to provide a method whereby the parties or the appellate court may correct mistakes or omissions in the record following certification of the record. Adamson v. Norwest Bank, NA, 609 N.E.2d 35, 37 (Ind.Ct.App.1993) (quotation omitted).

If the petition for judicial review and the agency’s order are a sufficient manifestation of the error complained of, Seattle need not have a duty to transmit any other material in order for the trial court to consider its appeal. Ladd, supra. By affirming the trial *600court’s dismissal the majority ignores this possibility, and contravenes our own rule that “incompleteness and inadequacy of the record shall not constitute a ground for dismissal” and our preference to review a case on its merits.

For these reasons I dissent.

. This court has consistently determined that the time provisions of I.C. § 4-21.5-5-13 are mandatory and a condition precedent to a court acquiring jurisdiction where an appeal or review is sought from an administrative order or determination. See Crowder v. Rockville Training Center, 631 N.E.2d 947 (Ind.Ct.App.1994), trans. denied (failure to file record within statutory time frame jurisdictional defect); Indianapolis Yellow Cab, Inc. v. Indiana Civil Rights Commission, 570 N.E.2d 940 (Ind.Ct.App.1991), trans. denied (record filed one day late was jurisdictional defect warranting dismissal).

Analyzing the requirements of IC § 4-22-1-14 (the precursor to IC § 4-21.5-5-13), this court has stated:

The person who files a petition for judicial review must "secure" from the agency a transcript and "file” it with the reviewing court within 15 days of the filing of the petition for review, or within any authorized extension. Such requirement is a pre-condition to conferring jurisdiction upon the reviewing court.

Drake v. Indiana Natural Resources, 453 N.E.2d 288, 292 (Ind.Ct.App.1983), trans. denied. (Emphasis added.) However, the court makes this statement in the context of a party's failure to file a record after an authorized extension not on the issue of an incomplete record.