990 N.E.2d 9
Ind. Ct. App.2013Background
- First American sought judicial review and declaratory relief of the Commissioner’s order setting an investigatory hearing about a market conduct examination report.
- Examiners’ report was filed Sept. 30, 2010; Commissioner forwarded it Oct. 18, 2010; First American’s responses followed.
- Parties agreed to extensions of the 30-day statutory deadline; last extension to Feb. 4, 2011.
- On Apr. 15, 2011 the Commissioner issued the order for a hearing; notice issued Apr. 19, 2011.
- First American filed its petition May 17, 2011; trial court denied the petition on the merits.
- Court held the Commissioner’s deadline violation voids the order and that prejudice need not be separately shown.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to comply with the deadline voids the order | First American argues deadline compliance is mandatory; order void | Robertson contends extensions permitted by other provisions and timing flexible | Yes; deadline mandatory, order void |
| Whether prejudice must be shown separately | Prejudice prong not required if action falls within five categories | Prejudice must be shown separately under AOPA | No separate prejudice showing required; petition granted |
| Whether exhaustion of administrative remedies was jurisdictional | Exhaustion issue raises jurisdictional concern | Exhaustion is procedural and waived since raised late | Waived; not jurisdictional |
| Sufficiency of materials for judicial review (agency record) | Submitted materials adequate for review | Agency record required | Sufficient materials submitted; dismissal affirmed on that point is rejected |
Key Cases Cited
- K.S. v. State, 849 N.E.2d 538 (Ind. 2006) (procedural errors not jurisdictional; timely challenges waiveability discussed)
- Packard v. Shoopman, 852 N.E.2d 927 (Ind. 2006) (timeliness of filing is procedural, may be waived if not raised timely)
- Kennedy v. Town of Gaston, 923 N.E.2d 988 (Ind. Ct. App. 2010) (exhaustion under Unsafe Building Act treated as procedural, waiverable)
- Izaak Walton League of Am., Inc. v. DeKalb Cnty. Surveyor’s Office, 850 N.E.2d 957 (Ind. Ct. App. 2006) (materials sufficient for review when record not fully developed)