The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 6 today (and 22 NFP)

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Friday, January 30, 2009

Ind. Decisions - Court of Appeals issues 6 today (and 22 NFP)

For publication opinions today (7):

In In Re the Paternity of Maria E. Duran: Baltasar Regalado v. Maria E. Duran and First National Bank of Valparaiso, et al. , a 24-page combined opinion, Judge Kirsch writes:

This case represents the consolidation of two causes of action pertaining to Joseph Regalado ("Joseph"). The first, a paternity action, is an appeal by Joseph's father, Baltasar Regalado ("Baltasar"), of the trial court‘s order that he could not intervene in the paternity action, which resulted in the determination that Joseph is the biological father of Maria E. Duran ("Duran"). The second, an estate action, is Duran‘s interlocutory appeal of the trial court‘s determination that, pursuant to IC 29-1-2-8, she is not entitled to inherit by means of intestate succession from Joseph's estate. On its own motion, this court consolidated these two cases into the paternity action. On appeal, Duran raises a number of estate issues, which we consolidate and restate as follows: I. Whether the trial court abused its discretion in determining that Indiana law applies to the administration of Joseph‘s estate. II. Whether the trial court erred in determining that Duran is not Joseph‘s heir under the laws of intestacy.

Baltasar also raises a number of issues of which we find the following restated issue to be dispositive: III. Whether the trial court erred in denying Baltasar‘s motion to intervene in the paternity case.

We affirm the decisions of the two trial courts.

In Indiana Family and Social Services Administration v. Alice V. Meyer (Deceased), and Dianne M. Rynn, Trustee, a 14-page, 2-1 decision with three opinions, Judge Bailey concludes:

We conclude that Indiana Code Section 4-21.5-5-13 does not speak to subject matter jurisdiction, does not mandate automatic dismissal for procedural error, and must be read to confer upon the trial court discretion in some circumstances. Just as the trial court has discretion to grant an extension of time, subject to the “good cause” requirement, the trial court has the discretion to find that a petition “subject to dismissal” should not, upon a proper showing, be dismissed. Affirmed.

BARNES, J., concurs in result with opinion. [which includes] I concur in result here because Judge Bailey and I do not see eye-to-eye on the trial court's “discretion.”

MATHIAS, J., dissents with opinion. [which includes] I respectfully dissent. The timely and complete filing of the agency record is a condition precedent to the acquisition of jurisdiction to consider a petition for judicial review.

In Beth A. Forni v. Review Board of the Indiana Department of Workforce Development and Caryn A. Guba, DDS, a 6-page opinion, Judge May writes:

Beth Forni appeals an adverse decision of the Review Board of the Indiana Department of Workforce Development. Because she did not have actual notice of the hearing before the administrative law judge (“ALJ”), the Board erred by affirming the ALJ’s decision. Therefore, we reverse and remand for a new hearing. * * *

The Board mailed notice to Forni, and therefore a presumption arose that she received notice. Scott 725 N.E.2d at 996. However, the Board does not dispute that Forni did not receive actual notice prior to the hearing; therefore, the presumption has been rebutted. Id. Thus, straightforward application of Scott compels a new hearing. * * * Our General Assembly could have made service effective on mailing, but it did not. Therefore, we will adhere to Scott, and we reverse and remand for a new hearing.

Gary Lewis v. Alvis Wynn , a 10page opinion, Judge May writes:

On March 29, 2005, Alvis Wynn shot and killed his step-daughter, Linda Lewis and then killed himself. Linda’s personal representative, her husband Gary Lewis, filed a wrongful death claim against Alvis’ estate and a negligence claim against Phyllis Wynn, who is Linda’s mother and Alvis’ wife. Gary alleged Phyllis “procured or possessed” the gun used in the shooting and “negligently stored, entrusted, monitored or allowed” Alvis to take possession of it. Phyllis moved for summary judgment on the negligence claim and on the issue of whether nonprobate transfers to her were subject to claims against Alvis’ estate. The trial court granted summary judgment for Phyllis on the negligence claim and held her liability would be limited to the extent Alvis contributed to the accounts that were transferred to her on Alvis’ death. We affirm.

In William B. Reedus v. Indiana Dept. of Workforce Development, a 14-page opinion, Judge Bailey writes:

The dispositive issue is whether the trial court erred in dismissing the appeal. * * *

The DWD asserts that Reedus failed to follow the procedure for seeking review of an administrative decision. This issue predates AOPA. * * *

Since this Court‟s decision in Izaak Walton, we have twice affirmed a trial court‟s dismissal of an administrative appeal because the petitioner failed to file an appropriate record. * * *

In light of the recent developments in the common law and the recognized split in authority on how to analyze the adequacy of a petitioner‟s filings, we review AOPA 3-33 and AOPA 5-13. * * *

Frequently, this issue matches a citizen against his state government, which is well- versed in the ways of its own administrative adjudications and the keeper of the relevant documents. Within the context of Due Process, a hyper-formalistic filing requirement is inappropriate, especially when a person has already filed timely a verified petition.

Under a strict application of AOPA, there would exist the potential for a state agency to be intentionally slow and uncooperative in producing a complete record, in hopes of securing a dismissal. In Izaak Walton, the Natural Resources Commission produced the specific documents the petitioner had requested in writing. Subsequently, the Office of the Attorney General argued diligently that the filing of those same documents, and not more, caused the trial court to lack jurisdiction. We recognize the challenge of coordinating the efforts of agencies responsible to different elected officials. Nonetheless, the State?s collective actions in Izaak Walton smacked of the fox guarding the hen house. Also as discussed in Izaak Walton, it would be a waste of resources to require the filing of irrelevant documents, potentially including notices, prehearing orders, every filing by every party, and documents relating to resolved issues. It is hard to imagine that the General Assembly intended these results.

On appeal, Reedus argues that the transcript and exhibits were not necessary for review of the ALJ?s decision. However, in his Petition to the trial court, Reedus asserted that the ALJ's decision was “unsupported by substantial evidence.” AOPA 5- 13(a)(2) requires the filing of “other documents identified by the agency as having been considered by it before its action and used as a basis for its action.” It is clear from the ALJ's order that he relied on the testimony in making his findings. Therefore, the filing of the evidence was explicitly required by AOPA 5-13(a)(2). Reedus' Petition was inadequate.

Conclusion. The trial court did not abuse its discretion in dismissing the Petition. Affirmed.

BARNES, J., concurs.
MATHIAS, J., concurs in result with opinion. [which begins] I concur in result but respectfully disagree with the majority's conclusion that a trial court may exercise its discretion in deciding whether to allow a petition for judicial review if the agency record is not filed in accordance with Indiana Code section 4-21.5-5-13. The timely and complete filing of the agency record is a condition precedent to the acquisition of jurisdiction to consider a petition for judicial review.

James E. Wingate v. State of Indiana - "In sum, having concluded that Wingate‟s trial counsel did not render deficient representation for failing to object to the filing of two additional, factually independent charges on the sixty-ninth day following Wingate‟s request for a speedy trial or for failing to object to the admission of certain evidence at trial, we affirm the judgment of the post-conviction court. "

NFP civil opinions today (8):

In the Matter of the Paternity of C.N.S. (NFP)

Armand Murat v. South Bend Lodge No. 235 of the Benevolent and Protective Order of Elks of the United States of America, et al. (NFP)

Paul Lockhart v. Corporate Svcs., Inc. (NFP)

In the Matter of T.P., b/n/f Carlos Perez v. Aimee Frank n/k/a Aimee Clark (NFP)

Dusty W. Rhodes v. Tracie M. Rhodes (NFP)

Wendy Byers, M.D. v. Linda Jean Quillen (NFP)

Eric W. Cole v. Review Board of the Indiana Dept. of Workforce Development and AVI Foodsystems (NFP)

Christina M. Striker v. Courtney W. Sparkman (NFP)

NFP criminal opinions today (14):

Fred McCormick v. State of Indiana (NFP)

Luis M. Eshebarria-Santiago v. State of Indiana (NFP)