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Monday, June 04, 2007

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In Donald and Jacquelyn Lindsey v. De Groot Dairy, LLC and IDEM, a 7-page opinion, Judge Bailey writes:

Donald and Jacquelyn Lindsey (“Lindseys”) appeal the dismissal of their Verified Petition for Judicial Review (“Verified Petition”) of an administrative law judge’s order. We reverse. * * *

De Groot Dairy LLC (“De Groot”) operated a farm with dairy cows, including pools used to collect waste. The Indiana Department of Environmental Management (“IDEM”) issued a confined-feeding-operation permit to De Groot. Later, De Groot and IDEM entered an Agreed Judgment, pursuant to which IDEM issued an amended permit. The Lindseys live near the farm. On January 25, 2005, they filed a Petition for Administrative Review and Stay of Effectiveness of the Amendment, alleging a series of harms. The Chief Environmental Law Judge (“ELJ”) dismissed the Lindseys’ Petition for Administrative Review for failure to state a claim upon which relief can be granted.

On February 27, 2006, the Lindseys filed their Verified Petition in Huntington Superior Court, sending summons to the Attorney General, the ELJ, an IDEM attorney, and the attorney who had represented De Groot in the administrative proceeding, Todd Janzen (“Janzen”). However, no summons was sent to De Groot. De Groot filed a Motion to Dismiss, contesting subject matter jurisdiction. Also, it moved for an automatic change of judge. A special judge granted De Groot’s Motion to Dismiss. The Lindseys now appeal. * * *

[The court examines IC 4-21.5-5-1 which provides that: "A petitioner for judicial review shall serve a copy of the petition upon: . . . (4) each party to the proceeding before an agency; in the manner provided by the rules of procedure governing civil actions in the courts." The Court notes "we are presented with an issue of first impression."]

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), reh’g denied. We prefer not to erect procedural obstacles to their presentation. Maldonado v. State, 265 Ind. 492, 355 N.E.2d 843, 848 (1976). In light of the considerations noted above, we conclude that service pursuant to Trial Rule 5 satisfies Indiana Code Section 4-21.5-5-8. To rule otherwise would create a procedural trap for unwary litigants, especially where, as here, the parties had already been engaged in the dispute for some time. If the General Assembly would prefer service to be achieved under Trial Rule 4, it should so specify. Conclusion We conclude that the trial court erred in dismissing the Lindseys’ Verified Petition for Judicial Review. Reversed.

See this ILB entry from June 2, 2007 for some of the other matters involving DeGroot Dairy.

NFP civil opinions today (0):

NFP criminal opinions today (8):

Eric Crawford v. State of Indiana (NFP)

Elvis A. Pack v. State of Indiana (NFP)

Darrell Washington v. State of Indiana (NFP)

Kurt M. Taylor v. State of Indiana (NFP)

In the Matter of A.J.C. v. State of Indiana (NFP)

Stephen Gaskey, Jr. v. State of Indiana (NFP)

Bruce Lamson v. State of Indiana (NFP)

Carlos Ramirez v. State of Indiana (NFP)

Posted by Marcia Oddi on June 4, 2007 02:57 PM
Posted to Ind. App.Ct. Decisions