Breitweiser v. INDIANA OFFICE ENVIRON. ADJUDICATION

• Decision Date: 02 October 2002
• Docket Number: No. 49A04-0111-CV-505.,49A04-0111-CV-505.
• Citation: 775 N.E.2d 1175
• Parties: Thomas BREITWEISER and L. Jae Breitweiser, Appellants Petitioners, v. INDIANA OFFICE OF ENVIRONMENTAL ADJUDICATION, Chief Environmental Law Judge Wayne E. Penrod, and David Ferguson, Appellees-Defendants.
• Court: Indiana Appellate Court

775 N.E.2d 1175

Thomas BREITWEISER and L. Jae Breitweiser, Appellants Petitioners, v. INDIANA OFFICE OF ENVIRONMENTAL ADJUDICATION, Chief Environmental Law Judge Wayne E. Penrod, and David Ferguson, Appellees-Defendants.

No. 49A04-0111-CV-505.

Court of Appeals of Indiana.

October 2, 2002.

E. Scott Treadway, Tabbert Hahn Earnest & Weddle, LLP, Indianapolis, IN, Attorney for Appellants.

Steve Carter, Attorney General of Indiana, David L. Steiner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellees, Indiana Office of Environmental Adjudication and Chief Environmental Law Judge Wayne E. Penrod.

George T. Patton, Jr., Daniel P. McInerny, Melinda R. Shapiro, Bose McKinney & Evans, Indianapolis, IN, Attorneys for Appellee David Ferguson.

OPINION

BARNES, Judge.

Case Summary

Thomas and L. Jae Breitweiser appeal the trial court's dismissal of their petition for judicial review. The petition challenged orders of Chief Environmental Law Judge ("ELJ") Wayne Penrod of the Indiana Office of Environmental Adjudication ("OEA") in which he refused to disqualify himself, refused to vacate orders previously entered by Administrative Law Judge ("ALJ") Linda Lasley, and entered a final order of default against the Breitweisers in their action challenging the granting of a confined animal feeding operation ("CAFO") permit to David Ferguson by the Indiana Department of Environmental Management ("IDEM").¹ We reverse and remand.

Issues

We restate the dispositive issues before us as:

I. whether the trial court could properly reconsider an earlier decision to deny the Appellees' motions to dismiss and for partial summary judgment; and

II. whether the final order of default against the Breitweisers precludes judicial review of Judge Penrod's denial of the Breitweisers' motion to disqualify him.

Facts²

IDEM issued a permit to Ferguson to operate a swine CAFO in Jefferson County. The Breitweisers, who lived in close proximity to the proposed CAFO, filed with the OEA a petition for administrative review of IDEM's decision to issue the CAFO permit on July 17, 1998. ELJ Lasley conducted proceedings in the case. In March 1999, a law firm contacted a member of the governor's executive staff, contending Lasley was not qualified to be an ELJ under the statutes creating the OEA and threatening to challenge any decisions Lasley made because of this alleged lack of qualification. After a meeting with this member of the governor's staff, Judge Penrod decided to name Lasley an ALJ, revoking her ELJ title, the difference being, as Lasley explained, that as an ALJ Lasley would issue recommended orders that could be appealed to Chief ELJ Penrod instead of issuing final orders appealable directly to a trial court.

On April 15, 1999, the Breitweisers filed a motion for change of ALJ. The motion alleged Lasley was not qualified to serve in the matter because (1) she was previously employed by IDEM and (2) she had not been practicing environmental or administrative law for five years.³ Lasley denied the motion, which was subsequently affirmed by Judge Penrod on May 10, 1999. On May 14, 1999, however, Lasley disqualified herself from further participation in the case "in the interest of efficient case administration." Appellant's App. p. 212.

On May 19, 1999, the Breitweisers filed a motion to disqualify Judge Penrod and a motion to vacate all of Lasley's prior rulings; on May 25, 1999, the Breitweisers filed a motion for an expedited ruling on the May 19 motions. On May 26, 1999, Judge Penrod issued a "Notice of Proposed Order of Default" against the Breitweisers, who never filed a direct written response to this notice. Appellant's App. p. 233. On June 2, 1999, however, the Breitweisers filed a "Verified Complaint for Writ of Mandate, for Temporary Restraining Order and for Preliminary and Permanent Injunction" against the OEA and Judge Penrod in Marion County Superior Court on the day before an oral argument was scheduled on the proposed default order. Appellant's App. p. 238. Following a hearing, that court entered the following dismissal order on June 15, 1999:

Defendants, Indiana Office of Environmental Adjudication and Chief Environmental Law Judge Wayne E. Penrod, agree to rule upon all pending motions in the underlying administrative matter. Defendants further agree to stipulate that Chief Environmental Law Judge Penrod will rule on Plaintiffs' Motion to Disqualify Chief Administrative Law Judge Penrod and Motion for Change of Administrative Law Judge filed May 19, 1999, prior to ruling upon other pending motions. Defendants further agree that Chief Environmental Law Judge Penrod will rule upon Plaintiffs' Motion to Vacate All Prior Rulings of Administrative Law Judge Lasley filed May 19, 1999.

Appellant's App. p. 306-07. On June 17, 1999, Judge Penrod entered three orders: one denying the motion for his disqualification, one denying the motion to vacate Lasley's rulings, and one finding the Breitweisers in default.

On July 16, 1999, the Breitweisers filed their petition for judicial review of Judge Penrod's June 17 orders in the Marion County Superior Court. Judge Gerald Zore of that court denied various motions by the Appellees, including a motion to dismiss, a motion to reconsider the denial of the motion to dismiss, and a motion for partial summary judgment. On January 9, 2001, the case was transferred to Judge Michael Keele of the newly-created Environmental Division of the Marion Superior Court. The Appellees requested Judge Keele to reconsider Judge Zore's previous denial of their motions to dismiss and for partial summary judgment. On October 1, 2001, Judge Keele entered an order dismissing the Breitweisers' complaint, stating that his court lacked jurisdiction over the matter because the OEA through Judge Penrod had found the Breitweisers to be in default. The Breitweisers now appeal.⁴

Analysis

I. Judge Keele's Reversal of Judge Zore's Rulings

As a threshold matter, the Breitweisers contend it was improper for Judge Keele to reconsider and reverse Judge Zore's rulings denying the Appellees' motions to dismiss and for partial summary judgment. In support of their argument, the Breitweisers cite cases holding that although "a court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, as a general rule courts should be reluctant to do so in the absence of extraordinary circumstances." Indiana Farm Gas Production Co., Inc. v. Southern Indiana Gas and Elec. Co., 662 N.E.2d 977, 981 (Ind.Ct.App. 1996). The Breitweisers contend that no extraordinary circumstances existed that justified Judge Keele's reconsideration of Judge Zore's rulings.

The Appellees correctly note, however, that the "extraordinary circumstances" limitation on revisiting a prior decision is limited to the "law of the case" doctrine, which provides that "an appellate court's determination of a legal issue is binding both on the trial court on remand and the appellate court on a subsequent appeal, given the same case with substantially the same facts." Id. When the issue is whether a court can reconsider an earlier ruling while the case is still pending before that court, there is no such limitation. In fact, it is well-settled that "a trial court is not bound by its own earlier rulings unless they have been adopted by an appellate court's decision." Serletic v. Noel, 700 N.E.2d 1159, 1161 (Ind.Ct.App. 1998). A ruling by one judge that is not a final appealable order is not binding on a second judge assigned to the case, and the second judge is free to reconsider such a ruling and decide the issue involved as if before the trial court for the first time. See id. Here, Judge Zore's denials of the Appellees' motions to dismiss and for partial summary judgment were not final orders and were not binding upon Judge Keele. Judge Keele was free to reconsider and address the issues raised in those motions as if before the trial court for the first time, without limitation. "[U]ntil a judgment is entered, a trial court can amend, modify or change an earlier decision." Id.

II. Dismissal of Judicial Review Petition

We now turn to the merits of the dismissal of the Breitweisers' petition for judicial review. The Appellees contend the trial court lacked jurisdiction to consider any of the questions raised in the petition because the Breitweisers were found to be in default in the proceedings before the OEA. Indiana Code Section 4-21.5-3-24, included within the Indiana Administrative Orders and Procedures Act ("AOPA"), provides in part:

(a) At any stage of a proceeding, if a party fails to:

(1) file a responsive pleading required by statute or rule;

(2) attend or participate in a prehearing conference, hearing, or other stage of the proceeding; or

(3) take action on a matter for a period of sixty (60) days, if the party is responsible for taking the action;

the administrative law judge may serve upon all parties written notice of a proposed default or dismissal order, including a statement of the grounds.

(b) Within seven (7) days after service of a proposed default or dismissal order, the party against whom it was issued may file a written motion requesting that the proposed default order not be imposed and stating the grounds relied upon. During the time within which a party may file a written motion under this subsection, the administrative law judge may adjourn the proceedings or conduct them without the participation of the party against whom a proposed default order was issued, having due regard for the interest of justice and the orderly and prompt conduct of the proceedings.

(c) If the party has failed to file a written motion under subsection (b), the administrative law judge shall issue the default or dismissal order. If the party has filed a written motion under subsection (b), the administrative law judge may either enter the order or refuse to enter the order.

Indiana Code Section...