Wilson v. Ind. Horse Racing Comm'n, 49A02-1011-MI-1303

• Decision Date: 25 April 2011
• Docket Number: No. 49A02-1011-MI-1303,49A02-1011-MI-1303
• Parties: RENEE KAY WILSON, Appellant-Defendant, v. INDIANA HORSE RACING COMMISSION, Appellee-Plaintiff.
• Court: Indiana Appellate Court

RENEE KAY WILSON, Appellant-Defendant, v. INDIANA HORSE RACING COMMISSION, Appellee-Plaintiff.

No. 49A02-1011-MI-1303

COURT OF APPEALS OF INDIANA

April 25, 2011

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

STEVEN A. GUSTAFSON

New Albany, Indiana.

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

FRANCES BARROW

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable David J. Dreyer, Judge

Cause No. 49D10-1008-MI-37290

MEMORANDUM DECISION-NOT FOR PUBLICATION

FRIEDLANDER, Judge

Renee Kay Wilson appeals from the trial court's order dismissing with prejudice her Petition for Judicial Review of a decision of the Indiana Horse Racing Commission (IHRC) granting her only a conditional horse racing trainer's license containing the restriction that the horses she trained be stabled in Indiana. Wilson presents several issues for our review, which we consolidate and restate as follows: Did the trial court err in dismissing with prejudice her petition for judicial review?

We affirm.

On April 22, 2009, Wilson applied for a horse trainer's license from the IHRC. On May 1, 2009, the IHRC granted Wilson a conditional license, requiring that any horses trained by Wilson be stabled in Indiana. Wilson responded by filing a request for an unconditional license, which was denied on June 3, 2009. Wilson sought review of the determination by an administrative law judge, who, in an order dated February 18, 2010, upheld the denial of Wilson's request for an unconditional license. On July 13, 2010, the IHRC issued its final order affirming the decision to grant Wilson only a conditional license.

Wilson filed a petition for judicial review on August 10, 2010. The petition was not verified. Wilson attached to her petition a copy of the IHRC's final order and ALJ's decision dated February 18. The agency record was filed with the trial court on September 13, 2010.

On October 13, 2010, the IHRC filed a motion to dismiss the petition for judicial review, tendering affidavits and transcripts in support thereof. The basis for the motion to dismiss was that Wilson's petition was not verified and that the agency record was also not verified and was tendered three days late. The IHRC maintained that these omissions/errors deprived the trial court of jurisdiction. On October 29, 2010, Wilson filed a reply brief and amotion to amend the complaint to add the required verification. Wilson also added another count to her complaint seeking a declaratory judgment. On November 4, 2010, the trial court, without a hearing, dismissed Wilson's petition by signing the IHRC's tendered order, which provides as follows:

Respondent, Indiana Horse Racing Commission (named as IHRC Staff) ("IHRC"), having filed its Motion to Dismiss this action based upon Petitioner's failure to comply with the requirements of the Administrative Orders and Procedures Act ("AOPA"), and the Court having considered the Motion, briefing and exhibits thereto, and any further hearing, response or reply, now GRANTS the Respondent's Motion to Dismiss in its entirety. The Court now makes these FINDSINGS [sic] of FACT and CONCLUSIONS of LAW, which are not all inclusive of the Court's reasoning herein, but instructive of it:

1. This judicial review involves the IHRC's agency determination, the Final Order of July 13, 2010, that offered a 2009 conditional horse racing owner/trainer license, containing an 'on the grounds stabling requirement', to Petitioner Wilson.

2. The Court takes judicial notice of its Docket and file.

3. On August 10, 2010, Petitioner filed her unverified "Petition for Judicial Review" seeking to challenge the conditional license offer and Final Order issued by the Respondent IHRC on July 13, 2010.

4. On Monday, September 13, 2010, Petitioner untimely filed (three days late), by regular mail, a substantially incomplete Record of the relevant IHRC agency proceedings below (the "Record").

5. Under controlling authority, the Record was due within thirty (30) days, or Friday, September 10, 2010, of the filing of the Petition or an extension for time with the Court had to be timely filed within that period. Petitioner did neither, subjecting this case to dismissal for lack of jurisdiction or lack of statutory authority. Ind. Code § 4-21.5-5-13 (AOPA). The Court has no authority to extend the deadline or grant a late extension-the missed deadline is jurisdictional or a pre-requisite of statutory compliance. Indiana Family of Social Services Administration v. Alice Meyer, 927 N.E.2d 367, 3701 (Ind. May 25, 2010); Ind. Bd. of Health Facility Administration v. Werner, 841 N.E.2d 1196, 1206 (Ind. Ct. App. 2006).

6. Because the Petition was filed unverified it is not in compliance with AOPA and untimely for this second reason. Ind. Code §4-21.5-5-7(b). Mere signature by Petitioner's attorney on the petition is insufficient. Further, as the thirty day petition filing period has passed on August 12, 2010, anamended petition with verification would still be untimely and improper. Kemp v. Family and Social Services, 693 N.E.2d 641 (Ind. Ct. App. 1998).

7. The late-filed Record is substantially incomplete as it lacks the April 29 and July 13, 2010 transcripts of the deliberations leading to the Final Order of the IHRC. These missing transcripts are significant and make any possible Court review without them less accurate. Petitioner also failed to follow the statute requiring that she ask IHRC to properly assemble the record following the Final Order. See, Ind. Code §4-21.5-5-13(c), and Meyer, 927 N.E.2d 371-2 (Submitting only selected documents from the agency record is insufficient, and substantial compliance is only found if the incomplete record allows 'accurate' review.)

8. The Record is substantially incomplete, the time to cure the record passed on September 13, and this Court cannot as 'accurately' give review. Dismissal under Meyer's reasoning is appropriate.

9. As the agency Record was filed untimely and substantially incomplete by Petitioner, and the Petition was filed unverified, this Court must dismiss this action for lack of jurisdiction pursuant to 12(B)(1) or in the alternative, 12(B)(6) for failure to state a claim upon which relief can be granted.

IT IS THEREFORE ORDERED that the Petition for judicial review is hereby DISMISSED with prejudice.

Appellant's Appendix at 3-5 (emphasis in original). Wilson now appeals.

We begin by noting our standard of review. Here, the IHRC filed a motion to dismiss pursuant to Ind. Trial Rule 12(B)(6) and attached thereto several exhibits and an affidavit. In its order, the court made clear that it considered the exhibits in reaching its decision. "If matters outside the pleadings are presented to and not excluded by the trial court, [a motion to dismiss] shall be treated as one for summary judgment and disposed of as provided in Trial Rule 56." Reich v. Lincoln Hills Christian Church, Inc., 888 N.E.2d 239, 242 (Ind. Ct. App. 2008); T.R. 12(B).

Our standard of review for a trial court's grant of a motion for summary judgment is well settled:

Summary judgment is appropriate only where the evidence shows that there isno genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. A party seeking summary judgment bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the party is entitled to judgment as a matter of law. A factual issue is "genuine" if it is not capable of being conclusively foreclosed by reference to undisputed facts. Although there may be genuine disputes over certain facts, a fact is "material" when its existence facilitates the resolution of an issue in the case.

Van Kirk v. Miller, 869 N.E.2d 534, 539-40 (Ind. Ct. App. 2007) (citations omitted), trans. denied.

At the outset, we note that Wilson does not deny that there were procedural flaws in her petition for judicial review of the IHRC's final determination denying her request for an unconditional license. Wilson acknowledges that the petition was not verified as required by Ind. Code Ann. § 4-21.5-5-7(b) (West, Westlaw current through 2011 Pub. Laws approved & effective through 2/24/2011). She further acknowledges that the record was not sent via certified mail, resulting in the record being filed three days late. Wilson maintains that this was due to a clerical error. Notwithstanding these deficiencies, Wilson argues that it was error for the trial court to dismiss her petition for judicial review. Specifically, Wilson maintains that the statutory requirements for judicial review of an agency action directly conflict with the Indiana Trial Rules and therefore, the AOPA requirements should be deemed a nullity. Wilson also contends that to the extent AOPA purports to establish procedural rules, it is unconstitutional as a violation of separation of powers.

AOPA provides the exclusive means for judicial review of a final agency action. I.C. § 4-21.5-5-1 (West, Westlaw current through 2011 Pub. Laws approved & effective through 2/24/2011). AOPA requires that a petitioner file the original or a certified copy of the agencyrecord or request additional time to file the agency record within thirty days of the filing of a petition for judicial review. I.C. § 4-21.5-5-13(a) (West, Westlaw current through 2011 Pub. Laws approved & effective through 2/24/2011). "Failure to file the record within the time permitted by..., including any extension period ordered by the court, is cause for dismissal of the petition for review by the court, on its own motion, or on petition of any party of record to the proceeding." I.C. § 4-21.5-5-13(b) (emphasis supplied). As our Supreme Court has observed:

The purpose of AOPA section 13 is to

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