Indiana Alcohol and Tobacco Commission and PNC Bancorp, LLC (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 09 2019, 5:38 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr. Mark C. Webb
Attorney General of Indiana Tyler D. Helmond
Voyles Vaiana Lukemeyer Baldwin
Natalie F. Weiss & Webb
Deputy Attorney General Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Indiana Alcohol and Tobacco July 9, 2019
Commission, Court of Appeals Case No.
Appellant-Respondent, 18A-MI-2522
Appeal from the Marion Superior
v. Court
The Honorable Tim Oakes, Judge
PNC Bancorp, LLC, Trial Court Cause No.
Appellee-Petitioner. 49D02-1801-MI-898
Friedlander, Senior Judge.
[1] Appellant Indiana Alcohol and Tobacco Commission (the Commission) brings
this interlocutory appeal of the trial court’s denial of its motion to dismiss PNC
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Bancorp, LLC’s (PNC) amended petition for judicial review. Concluding that
PNC’s failure to timely file the agency record precludes judicial review of the
Commission’s decision, we reverse the trial court’s decision and remand for
further proceedings consistent with this opinion.
[2] The Commission denied PNC’s application for renewal of its permit to sell
alcoholic beverages. On January 9, 2018, PNC filed a petition for judicial
review of the Commission’s decision. Pursuant to statute, the agency record, or
a request for an extension of time to file the record, was due to be filed on or
before February 8. See Ind. Code § 4-21.5-5-13(a) (2004). This deadline passed
without PNC filing the record or requesting an extension of time.
[3] On February 21, PNC belatedly filed a motion for enlargement of time to file
the agency record. In response, the Commission filed a motion to dismiss
PNC’s petition arguing that PNC had failed to timely file either the agency
record or a request for an extension of time. The trial court denied the
Commission’s motion and granted PNC an extension of time through and
including March 31. PNC filed a second motion for enlargement of time to file
the record on March 29, which the Commission also opposed. The trial court
proceedings between the end of March and July are not entirely clear from the
record on appeal, but, during that time, PNC obtained new counsel.
[4] On July 23, PNC filed an amended petition for judicial review, to which it
attached the agency record. As before, the Commission filed a motion to
dismiss PNC’s petition, which the trial court denied. Upon the Commission’s
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motion, the court certified its order for interlocutory appeal, and this Court
granted the Commission’s motion to accept interlocutory jurisdiction.
[5] We review de novo a trial court’s ruling on a motion to dismiss for failure to
timely file necessary agency records where the court ruled on a paper record.
Teaching Our Posterity Success, Inc. v. Ind. Dep’t of Educ., 20 N.E.3d 149 (Ind.
2014).
[6] The Administrative Orders and Procedures Act (AOPA) governs the
proceedings and judicial review of decisions of the Commission. See Ind. Code
§§ 4-21.5-1-3 (1995) (providing that Commission is an agency under article
21.5), 4-21.5-2-0.1 (2011) (providing that article 21.5 governs all proceedings
and all proceedings for judicial review of agency action). A person aggrieved
by an action of the Commission may file a petition for review in the appropriate
trial court. See Ind. Code § 4-21.5-5-2 (1986).
[7] Once a petitioner has filed its petition for judicial review under Indiana Code
section 4-21.5-5-2, it must comply with the filing requirements for the agency
record. In that regard, Indiana Code section 4-21.5-5-13 provides in pertinent
part:
(a) Within thirty (30) days after the filing of the petition, or within
further time allowed by the court or by other law, the petitioner
shall transmit to the court the original or a certified copy of the
agency record for judicial review of the agency action . . . .
(b) An extension of time in which to file the record shall be
granted by the court for good cause shown. Inability to obtain
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the record from the responsible agency within the time permitted
by this section is good cause. Failure to file the record within the
time permitted by this subsection, 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.
(Emphasis added).
[8] Here, PNC filed its petition for judicial review of the Commission’s decision on
January 9, 2018. Thus, pursuant to Section 13, the agency record, or a request
for an extension of time to file the record, was due to be filed on or before
February 8. This deadline passed without PNC filing the record or a request for
more time. On February 21—thirteen days after the record was due to be
filed—PNC filed a motion for enlargement of time to file the record of
proceedings, which the trial court granted.
[9] On appeal, the Commission contends the trial court erred by not granting its
motion to dismiss PNC’s petition because PNC failed to timely file the record.
Citing Trial Rule 15, PNC claims its filing of an amended petition with the
agency record attached on July 23 relates back to the date of filing of its original
petition for judicial review, thus making its filing of the record timely.
Therefore, the crux of this appeal is: whether the AOPA required the court to
deny PNC’s petition for an extension of time to file the record when the petition
was filed after the time for filing the record or a request for an extension had
expired.
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[10] In Indiana Family and Social Services Administration v. Meyer, 927 N.E.2d 367(Ind. 2010), our supreme court interpreted the AOPA requirement of filing the
agency record set forth in Indiana Code section 4-21.5-5-13. The court stated,
“We believe the statute is clear. The statute places on the petitioner the
responsibility to file the agency record timely. Although the statute allows a
petitioner to seek extensions of time from the trial court . . . the statute does not
excuse untimely filing or allow nunc pro tunc extensions.” Id. at 370. Further,
the trial court may grant a request for an extension under this section “only if
the request is made during the initial thirty days following the filing of the
petition for review or within any previously granted extension.” Id. at 370-71.
Citing its decision in Meyer, the court more recently confirmed that trial courts
lack the “authority to extend the filing deadline for an agency record that was
not filed within the required statutory period or an authorized extension
thereof.” Teaching Our Posterity Success, Inc., 20 N.E.3d at 155. The court also
clearly established a bright-line approach to the filing of an agency record by
holding that a petitioner cannot obtain consideration of its petition where the
agency record, as defined by statute, has not been filed. Id.
[11] As confirmed by our supreme court, the statute plainly mandates that the
agency record or a motion for an extension of time must be filed within thirty
days of the filing of the petition, and the trial court may not extend this
statutory filing deadline or retroactively grant an extension. Accordingly, the
trial court in this case lacked the authority to grant PNC’s February 21 motion
for enlargement of time. Under the statute, PNC was required to file the
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agency record or file a motion for an extension of time by February 8, 2018; it
did not do so. Therefore, the trial court should have dismissed PNC’s petition
for judicial review.
[12] Finally, for the reasons explained above, we reject PNC’s claim under Trial
Rule 15 that the relation back doctrine cures the tardiness of the agency record
that it attached to its amended petition filed in July. Moreover, it has been
noted that after a filing deadline has passed, a party is not permitted to amend a
petition to cure its procedural defects. Town of Pittsboro Advisory Plan Comm’n v.
Ark Park, LLC, 26 N.E.3d 110 (Ind. Ct. App. 2015).
[13] Judgment reversed and remanded for further proceedings consistent with this
opinion.
Robb, J., and Bradford, J., concur.
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