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Monday, May 13, 2013

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In First American Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Indiana, on Behalf of the Indiana Dept. of Insurance, a 16-page opinion, Chief Judge Robb writes:

First American Title Insurance Company (“First American”) filed a verified petition for judicial review and declaratory relief against Stephen W. Robertson in his official capacity as Insurance Commissioner of the State of Indiana (the “Commissioner”). First American sought a declaration and judgment that the Commissioner’s order setting an investigatory hearing was void because it was issued outside the statutory time frame. First American appeals the trial court’s subsequent denial of its petition, raising the following restated issues: 1) whether the Commissioner’s failure to comply with the statutory deadline rendered his order void, and 2) whether the trial court erred by requiring a separate showing of prejudice. On cross-appeal, the Commissioner appeals the trial court’s denial of his motion to dismiss First American’s petition, raising the following restated issues: 1) whether First American’s failure to exhaust its administrative remedies deprived the trial court of subject matter jurisdiction over the petition, and 2) whether First American submitted sufficient materials for judicial review. Concluding the Commissioner’s claim with regard to the failure to exhaust administrative remedies is waived and there were sufficient materials to enable judicial review, but that the Commissioner’s failure to comply with the statutory deadline rendered his order void and the trial court erred by requiring a separate showing of prejudice, we affirm in part, reverse in part, and remand. * * *

The Commissioner waived its claim regarding exhaustion of administrative remedies by waiting to raise the issue for the first time on appeal. Because the materials submitted by First American with its petition were sufficient for judicial review, the trial court properly considered the merits of First American’s petition. Thus, we affirm the court’s denial of the Commissioner’s motion to dismiss. We conclude, however, that the Commissioner’s failure to comply with the statutory deadline rendered his order void and that the trial court erred by requiring a separate showing of prejudice. Thus, we reverse the trial court’s denial of First American’s verified petition for judicial review and declaratory relief and remand with instructions to grant the petition.[8]
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[8] We note that in many instances, when a court sets aside an agency action, it remands the case to the agency for further proceedings. See Ind. Code § 4-21.5-5-15. Considering our holding that the Commissioner’s failure to comply with the statutory deadline rendered his order void and he can no longer take action on the report that was the subject of the order, remand to the agency would serve no purpose and is, therefore, unnecessary. See Ind. State Bd. of Educ. v. Brownsburg Cmty. Sch. Corp., 865 N.E.2d 660, 668 (Ind. Ct. App. 2007) (“Simply put, where remand would serve no purposes—as in instances where no additional issues remain for determination—remand is unnecessary.”). On remand, the trial court must simply issue an order granting First American’s petition and declaring the Commissioner’s order void.

In Joseph Matheny v. State of Indiana , a 7-page opinion on a State petition for rehearing, Judge Crone writes:
The State petitions for rehearing in Matheny v. State, 983 N.E.2d 672 (Ind. Ct. App. 2013), in which we affirmed Matheny’s conviction for class D felony auto theft. In so doing, we concluded that although the trial court erred in refusing Matheny’s tendered jury instruction regarding the jury’s duty to conform the evidence to the presumption that the defendant is innocent, that error was harmless. Id. at 680-81. The State asks us to reconsider our conclusion that the trial court’s refusal of Matheny’s tendered instruction constituted error in light of Santiago v. State, No. 45A03-1207-CR-304, 2013 WL 796066 (Ind. Ct. App. Mar. 5, 2013), and Albores v. State, No. 45A03-1207-CR-327, 2013 WL 1341563 (Ind. Ct. App. Apr. 4, 2013). In each of those cases, another panel of this court concluded that the trial court did not err in refusing an instruction that was conceptually similar to that tendered by Matheny. We grant the State’s petition solely to clarify that our holding does not conflict with the holdings in those cases, and we affirm our original opinion in all respects.

NFP civil opinions today (4):

David D. Kiely v. Kathryn Starnes-Kiely (NFP)

Vickie Fenoglio as Personal Representative of the Estate of Paul Fenoglio v. Boguslaw Gluszak, M.D. and Steve Robertson, Commissioner of the Indiana Dept. of Ins. and Boguslaw Gluszak, M.D. (NFP)

Stephen Harriman and Elena Ivanova v. Smith Brothers Ultimate Builders, Inc. (NFP)

Paul Komyatti, Jr. v. The Consolidated City of Indianapolis-Marion County and Citizens Energy Group (NFP)

NFP criminal opinions today (1):

Chris Griner v. State of Indiana (NFP)

Posted by Marcia Oddi on May 13, 2013 10:37 AM
Posted to Ind. App.Ct. Decisions