Indiana State Bd. of Health v. Werner, 49A02-0505-CV-375.

• Court: Court of Appeals of Indiana
• Citation: 846 N.E.2d 669
• Docket Number: No. 49A02-0505-CV-375.,49A02-0505-CV-375.
• Parties: INDIANA STATE BOARD OF HEALTH FACILITY ADMINISTRATORS, Appellant-Respondent, v. Angela WERNER, H.F.A., Appellee-Petitioner.
• Decision Date: 20 April 2006

846 N.E.2d 669 INDIANA STATE BOARD OF HEALTH FACILITY ADMINISTRATORS, Appellant-Respondent,
v.
Angela WERNER, H.F.A., Appellee-Petitioner. No. 49A02-0505-CV-375. Court of Appeals of Indiana. April 20, 2006.

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Steve Carter, Attorney General of Indiana, Frances H. Barrow, Deputy Attorney General, Indianapolis, for Appellant.

J. Richard Keifer, Karl L. Mulvaney, Nana Quay-Smith, Bingham McHale, LLP, Indianapolis, for Appellee.

OPINION ON REHEARING

BARNES, Judge.

The Indiana State Board of Health Administrator's ("the Board") petitions for rehearing following our opinion in Indiana State Board of Health Facility Administrators v. Werner, 841 N.E.2d 1196 (Ind. Ct.App.2006). We grant the Board's petition for rehearing; however, we reaffirm our opinion in all regards. We issue this opinion on rehearing to clarify our earlier opinion and to address an argument raised by the Board for the first time in its petition for rehearing.

The Board first contends that "a closer look" at certain cases is warranted. Rehearing Pet. p. 3. We disagree. As they were cited in our opinion, we are well aware of Clendening v. Indiana Family and Soc. Servs. Admin., 715 N.E.2d 903, 904 (Ind.Ct.App.1999); Park v. Med. Licensing Bd. of Indiana, 656 N.E.2d 1176, 1178 (Ind.Ct.App.1995), trans. denied (1996); Indianapolis Yellow Cab, Inc. v. Indiana Civil Rights Comm'n, 570 N.E.2d 940, 942 (Ind.Ct.App.1991), trans. denied; Seattle Painting Co. v. Comm'r of Labor, 661 N.E.2d 596, 597 (Ind.Ct.App.1996), trans. denied.¹ In those cases, timely motions to dismiss were filed and, therefore, their outcomes did not turn on whether the trial courts had acquired subject matter jurisdiction or jurisdiction over the case.

The issue before us in this case is whether the jurisdiction issue was waived by the Board's failure to timely raise it. As we explained in our opinion, the answer to this question turns on whether the failure to timely file an agency record deprives a court of subject matter jurisdiction or jurisdiction over the case.²

It is well settled that the time provisions of Indiana Code Section 4-21.5-5-13 are mandatory and a condition precedent to a trial court acquiring jurisdiction to consider a petition for judicial review. Indiana State Bd. of Educ. v. Brownsburg Cmty. School Corp., 813 N.E.2d 330, 333 (Ind.Ct.App.2004). What type of jurisdiction the trial court is deprived of, however, is unclear. On appeal and again on rehearing the Board urges that the failure to

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comply with the statutory requirements deprives trial courts of subject matter jurisdiction. In support of its position, the Board cites for the first time on rehearing Indiana Department of Highways v. Dixon, 541 N.E.2d 877, 879 (Ind.1989), in which our supreme court addressed in part whether Dixon's petition for judicial review was timely filed. As dicta, our supreme court summarily observed:

In an action for judicial review of an administrative determination, statutory compliance is a condition precedent to subject matter jurisdiction in the trial court. City of South Bend v. Brooksfield Farm (1981), Ind.App., 418 N.E.2d 305. The provisions concerning time are mandatory and a condition precedent to a court acquiring jurisdiction where review is sought from an administrative determination. State v. Van Ulzen (1983), Ind.App., 456 N.E.2d 459.

Id. More recently, however, our supreme court noted that an important principle of administrative law is that the failure to comply strictly with the jurisdictional requirements embodied in the statute providing for judicial review prevents a trial court for acquiring jurisdiction of the parties or the particular cause. Shipshewana Convenience Corp. v. Bd. of Zoning Appeals of LaGrange County, 656 N.E.2d 812, 813 n. 9 (Ind.1995); see also Chandler v. Bd. of Zoning Appeals of Evansville and Vanderburgh County, 658 N.E.2d 80, 81 (Ind.1995) (reaffirming the "important principle of administrative law that where there is a failure to comply strictly with the jurisdictional requirements embodied in the statute ... a trial court does not acquire jurisdiction of the parties or the particular case" and concluding that "strict compliance with jurisdictional requirements embodied in the statute are required for a trial court to acquire jurisdiction").

These cases did not address whether a challenge to the trial court's jurisdiction was waived because that issue was not timely raised. In fact, in these cases, motions to dismiss were filed.³ For that reason, these cases are not directly on point. Nevertheless, we emphasize that our supreme court more recently specifically stated that the failure to comply with statutory requirements affects a trial court's jurisdiction over the parties and the cause and did not mention subject matter jurisdiction. See Shipshewana, 656 N.E.2d at 813 n. 9; Chandler, 658 N.E.2d at 81.

What we take from all of these cases is that the issue of whether statutory compliance goes to subject matter jurisdiction or...