Josam Mfg. Co. v. Ross

• Decision Date: 25 November 1981
• Docket Number: No. 3-781A168,3-781A168
• Citation: 428 N.E.2d 74
• Parties: JOSAM MANUFACTURING COMPANY, Appellant (Defendant Below), v. Robert ROSS, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 74

428 N.E.2d 74

JOSAM MANUFACTURING COMPANY, Appellant (Defendant Below), v. Robert ROSS, Appellee (Plaintiff Below).

No. 3-781A168.

Court of Appeals of Indiana, Third District.

Nov. 25, 1981.

James E. Schreiner, Tinkham, Schreiner & Bloom, P. C., Hammond, for appellant.

Timothy J. Walsh, Edward N. Kalamaros & Associates, P. C., South Bend, for appellee.

HOFFMAN, Presiding Judge.

On December 15, 1977 Robert Ross filed a claim for compensation against Josam Manufacturing Company (Josam) with the Industrial Board of Indiana in which he alleged workmen's occupational disease. On December 26, 1979 Ross filed written interrogatories to Josam, and Josam filed its motion to strike on January 3, 1980. On January 14, 1980 Ross filed a response to Josam's motion and filed a motion to compel answers to the interrogatories. The Industrial Board entered an order denying Josam's motion to strike and ordered Josam to answer the interrogatories. However, Josam refused to comply with the order.

Therefore, on August 6, 1980 Ross filed a complaint in the LaPorte Circuit Court to enforce the order of the Industrial Board which ordered Josam to answer the interrogatories. Josam filed an answer to the complaint, and on October 7, 1980 Ross filed a motion for summary judgment. On December 30, 1980 counsel for Ross filed his affidavit for attorney fees. The trial court entered summary judgment for Ross ordering Josam to comply with the Industrial Board order and awarded attorney fees of $290.

Ross has been paid no benefits in as much as the matter is still pending before the Industrial Board until the issues raised on appeal have been determined. Those issues are:

(1) whether the Indiana Trial Rules pertaining to discovery apply to the Industrial Board of Indiana in cases pending before it; and

(2) whether the trial court, in a proceeding to enforce an Industrial Board order, can award attorney fees.

Trial Rule 28(F) of the Indiana Rules of Procedure, as amended effective January 31, 1976, clearly states:

"Discovery proceedings before administrative agencies. Whenever an adjudicatory hearing, including any hearing in any proceeding subject to judicial review, is held by or before an administrative agency, any party to that adjudicatory hearing shall be entitled to use the discovery provisions of Rules 26 through 37 of the Indiana Rules of Trial Procedure. Such discovery may include any relevant matter in the custody and control of the administrative agency.

Protective and other orders shall be obtained first from the administrative agency, and if enforcement of such orders or right of discovery is necessary, it may be obtained in a court of general jurisdiction in the county where discovery is being made or sought, or where the hearing is being held."

It is generally true that the Indiana Trial Rules do not govern or bind the Industrial Board of Indiana. Davis v. Webster (1964), 136 Ind.App. 286, 198 N.E.2d 883. See also, Trial Rule 1. However, Trial Rules 26 through 37 seem to be an exception to this rule.

This exception was pointed out earlier by this Court in State v. Frye (1974), 161 Ind.App. 247, 315 N.E.2d 399. Frye was a case involving a state employee who instituted an action before the State Employees' Appeals Commission. He attempted through the Parke Circuit Court to force the giving of answers to his interrogatories. Because he had not first sought enforcement from the administrative agency, this Court held that the trial court's action was premature and erroneous. In reaching this decision, the Court said:

"Frye counters by urging that although the procedure to be followed in obtaining evidence in an administrative hearing is pathetically unclear, that TR. 37 should control in administrative actions as well as in strictly judicial actions.

"We have an exception to this general rule of the non-application of the trial rules to administrative agencies in TR. 28(F), supra, as the same pertains to discovery proceedings(.) "Appellee is correct in his contention and is, therefore, entitled to any help he can get from Trial Rules 26 through 37 on the matter of discovery.

"The administrative bodies of Indiana do not have contempt power. It is under TR. 28(F), supra, that the Parke Circuit Court had the power and authority to issue, in the case at bar, enforcement orders to require the Center to answer appellee's interrogatories, as that was the county in which the discovery was being made. Although the trial court had that power, it is our opinion that its action was premature and erroneous, in that the Commission had not been requested by appellee to order Center to submit answers to appellee's interrogatories and the same was prerequisite to appellee requesting the aid of the trial court.

"It is our further opinion that the trial court could not properly pass upon the interrogatories in a case such as this until such time the Commission had ruled that the interrogatories be answered and the same had not been answered within the time ordered by the Commission. After such failure, if any, to answer we can see no reason why the party filing the interrogatories should not then go to the trial court for relief, as provided in TR. 28(F)."

315 N.E.2d at 402-403.

In the case at hand, Ross had exhausted his administrative remedies prior to seeking aid from the trial court.

Josam contends that Frye does not apply to its case. Josam argues that the court came to its decision in Frye because the State Employees' Appeals Commission was bound by the Administrative Adjudication Act (AAA) and thus the exception set forth in TR. 28(F) applies only to agencies bound by the AAA. Since the Industrial Board is specifically exempted from coverage under the AAA, Frye does not apply to the Industrial Board.

Josam's argument is not persuasive. In discussing the powers given to agencies under the AAA, the Court in Frye said:

"This law, it is urged, gives the agency the power to issue subpoenas, rule upon offers of proof and receive relevant oral or documentary evidence, take or cause depositions to be taken, regulate the course of the hearing and conduct of the parties, ... (and) dispose, of procedural motions and similar matters. IC 1971, 4-22-1-7, Ind.Ann.Stat. §§ 63-3007 (Burns' 1961 Repl.).

"It is our opinion that the statutes above referred to, more specifically § 63-3007, is broad enough in its authorization of power to take or cause depositions to be taken, to include the power to cause the answering of proper interrogatories submitted by a party and, therefore, under said statutes, the State Employees' Appeals Commission is authorized to pass upon and dispose of objections to discovery in those instances where objections are made to interrogatories properly submitted." (Emphasis added.).

315 N.E.2d at 401.

The Rules of Procedure before the Industrial Board are very similar. For example, Rule 10 as found at Ind.Admin.Rules & Reg. (22-3-4-6)-10 (Burns Code Ed.) provides:

"Proof-How made.-In all hearings proof may be made by oral testimony, or by depositions, when the convenience of the witnesses or the parties so requires. Such depositions shall be taken in the manner and upon the notice required by statute for taking depositions in civil cases. (Industrial Bd., Procedural Rule 14, adopted Aug. 1, 1949, filed Aug. 2, 1949, eff. Aug. 10, 1949.) (Emphasis added.)

The Industrial Board also has the power to subpoena witnesses and regulate the course and conduct of the hearings. IC 1971, 22-3-7-24. Due to the similarity of the powers of the Industrial Board to the powers of the State Employees' Appeals Commission on which the Court in Frye based its conclusion, Frye is controlling on the issue of the applicability of the discovery trial rules.

Although Frye was not an Industrial Board case, the Court cited the case of Ind Steel Products v. Leonard, Admrx., etc. (1954), 124 Ind.App. 592, 117 N.E.2d 372 as authority in reaching its decision. Leonard was an Industrial Board opinion dealing with the issue of discovery in the form of conditional examinations in which the Court said:

"Appellant contends that because the Workmen's Compensation Act does not provide for the taking of conditional examinations and the rules of the Industrial Board do not provide therefor, such an examination cannot be taken in cases of this kind. We cannot agree. We see no reason why a party in these cases may not have the benefit of a conditional examination if taken in conformity with the law authorizing them in civil actions."

117 N.E.2d at 375.

In addition, TR. 28(F) speaks in terms of "any" adjudicatory hearing before an administrative agency. It does not distinguish between those agencies which are covered by the AAA and those which are not. An Industrial Board hearing is adjudicatory and trial-like in nature, rather than legislative in nature. Therefore, pursuant to TR. 28(F), Trial Rules 26 through 37 are applicable to the Industrial Board.

Josam places a great deal of emphasis on the case of Clary; Reinhold v. Nat'l. Friction Products (1972), 259 Ind. 581, 290 N.E.2d 53. Clary was an Industrial Board case in which the Indiana Supreme Court held that the Rules of Trial Procedure do not apply to actions before the Industrial Board. Clary, however, was a case involving appeals which were not perfected within 30 days from the award and in which no assignments of error were filed. The case discussed TR. 59(G) and had nothing whatsoever to do with the excepted Trial Rules for discovery.

Likewise, the other cases cited by Josam as authority for its position either predate Frye or do not deal with the issue of the Trial Rules for discovery. Thus, they are not controlling.

Josam argues that the Industrial Board has not adopted or promulgated any rules regarding discovery and it is unconstitutional for the judiciary to impose its rules upon the Industrial Board. Such an argument it seems only the Industrial Board would be in the position...