Indiana Department of Public Welfare v. Chair Lance Service, Inc.

adequately charged concept Sec on the liability on this basis. of rea- ant of criminal doubt, genuine choice" ond, presumption "lack sonable defendant's defendant's innocence, de closely parallels a duress argument proof, the State's burden of the which, 385-41-8-8 any proof defendant, fense under lack of burden on and terms, applicable to offenses is not jury's right to determine the law. person. v. State against the See Sanders prejudice no There was to the defense aas Ind., question N.E.2d 424. The of the trial result court's refusal of the support the evidence could here is whether tendered instruction. the victims were killed a determination that attempted committed or

while defendant Conclusion one of a number of crimes enumer commit judgment of the trial court is af- crime in 35-42-1-4. The ated Ind.Code § firmed. manslaughter contemplates involuntary killing occurring during the an incidental SHEPARD, C.J., DeBRULER, attempt one of commission or to commit PIVARNIK, JJ., concur. GIVAN only crimes. The other said enumerated applicable conceivably offense to the facts present battery.

here is On the evidence

ed, jury find it inconceivable that the we unintentionally

could find the victims were

killed while defendant battered them. properly

instruction was refused. Instruction

5. Strict Construction INDIANA DEPARTMENT OF PUBLIC argues Defendant the trial court erred WELFARE, Appellant refusing charge jury with his Below), (Respondent regarding instruction tendered number penal strict construction of statutes v. necessity ambiguities to resolve and the SERVICE, INC., CHAIR LANCE of the accused. favor (Petitioner Below). Appellee To determine error result whether No. 49S02-8806-CV-527. ed from the refusal of a tendered instruc Supreme Court of Indiana. tion, 1) must evaluate: whether Court correctly tendered instruction states June 1988. law; 2) whether there is evidence supports record the tendered instruc

tion; 8) whether another instruction in

covered the substance of the tendered (1986), Ind., struction. Jackson v. State

490 N.E.2d 1115. dispute

There is no that the ten correctly

dered instruction states the law in However,

Indiana. we discern no ambi

guity in the relevant statutes to warrant an dictating ambiguities

instruction should be resolved favor of the accused. trial, suggested

At defendant instruc

tion was relevant to construe the self-de statute; however, already

fense as we have

held, the defense of self not a valid was of this

defense under facts case. More

over, out, points jury State

SHEPARD, Chief Justice.

In this case we consider corpo- whether a ration's verify can judicial review under the Administrative Adjudication Act. We hold that it can. Service, Inc., is a Medicaid provider in transporting the business of private both and Medicaid pa wheelchair tients. Department The Indiana of Public ("IDPW") Welfare reimburses Chair Lance for transporting patients. Medicaid present controversy began when IDPW payments withheld certain upon finding that overcharged. Chair Lance had Chair appealed Lance to IDPW's review board petitioned lost. Chair judi Lance for cial review under the Adju Administrative Act, dication (Burns Ind.Code 4-22-1-14 § 1986 Repl.).1 The trial court determined IDPW had abused its discretion because it had not complied controlling with a regula federal tion. The court ordered a refund with payments held prejudgment interest. The Court of affirmed and re manded the case to IDPW for determina refunded, tion stating of the amount to be prejudgment issue was moot. Service, v. Chair Lance Inc. (1983),Ind.App.,448 N.E.2d 1216. September

On LIPDWsent Chair principal Lance a check for the amount withheld. Lioyd IDPW wrote to Shon kweiler, president Lance, Sep of Chair stating tember 18 and 27 "the Indiana De partment of Public Welfare has reached a $10,- decision to refund the amount of represents 716.00. ... a full refund [This] pended payments...." No mention prejudgment was made of interest. 3, 1984, January On request Chair Lance prejudgment ed interest and 2, 1984, On April March 26 and IDPW attorney, wrote to Chair Lance's Michael Linley Pearson, Gen., Atty. E. Gordon E. Gooch, refusing request. IDPW con- White, Jr., Gen., Deputy Atty. Indianapolis, 13, 1983, September tended that the letter for appellant. to Shonkweiler was a final administrative Gooch, Michael V. Moberly, Harrison & decision from which IDPW's administrative Indianapolis, appellee. regulations provided thirty days for an ad- Ind.Acts, repealed 1. This Act P.L. (Burns seq. Repl. § 4-21.5-1-1 et 18, 2, 1, 1987, July replaced by § effective 1986). appeal. ministrative See 470 IAC 5-1-4 I. Petition § Verification of (1984). Adjudication Administrative Act re- quires petition that a review be immediately petitioned for verified. Indiana Code 4-22-1-14 states: pay refusal to review IDPW's Any party person aggrieved by an interest, prejudgment attorney fees and order or determination made any such longer Lance contended was no issue Chair agency shall be entitled to a re- incorporated petition "moot." The the cor- view thereof in pro- accordance with the respondence Gooch and IDPW re- between visions of this act. may Such review of interest garding IDPW's denial and fees by filing with the superior cireuit or The, Gooch. and was verified county court of the person which such Jay incorporated also the affidavit of Mi- resides, any or in county in which such Lance, Brodey, counsel for Chair at- chael order or determination is to be carried testing "long-standing" to his firm's attor- enforced, out or petition. a verified ney-client relationship Lance, with Chair specifically The Act does not indicate who attorney and the amount of fees incurred. may verify petition a judicial on review argued that the trial court did IDPW not corporation. behalf of a The Ap Court of jurisdiction pe- have because Chair Lance's peals has may held that verification be properly by tition was not verified an offi- only by made corporation's the or executive corporation, cer of the and because Chair administrative Gary officers. Community "timely pursu[ed] Lance had not his Center, [sic] Mental Health Inc. v. Indiana remedies." The trial administrative court Department (1986), Public Ind. of Welfare App., 1341; 496 N.E.2d Community Care denied motion to IDPW's dismiss and Centers, Inc. v. Indiana to Chair Lance. awarded The of (1984), Ind.App., Public 468 N.E. court did the of not address issue Welfare support 2d 602. In holding, of its the Com munity Fidelity Care court cited & Casu After error motions correct were de alty 633, Co. v. Carroll 117 nied, parties appealed. both The Court of N.E. 858. held that a In Fidelity, this Court held that an affi by review corporate must be verified a required by davit support peti statute to a Depart officer and reversed. Indiana change judge grounds tion for a of ment v. Chair Lance by bias must be made an executive or ad Service, Inc., (Ind.App. 506 N.E.2d 840 party ministrative officer of the corpora 1987) tion, by agent attorney. not its or The grant We transfer and address the fol- petitioner corporation was a York New do lowing issues: ing Indiana, business in and the affidavit in support of its by motion was made

I. Whether the peti- verification of a corporation's manager. district tion for review of an admin- controlling statute directed that a proceeding affecting istrative a change granted of venue be either "when party corporation by must be made party shall make and file an affidavit of the corporation; of the an officer bias, prejudice, judge or interest of the II. Whether IDPW's March 26 letter before pending." whom the said cause is to Chair Lance constituted a final 634, 859, Id. at 117 quoting N.E. at Ind. administrative determination sub- (Burns 1914). 422 Code § ject review; found Fidelity Court that the lan- IIL. Whether the trial court erred in guage required at issue statute that failing to award fees to change "an affidavit for a of venue from Lance; Chair and judge ground bias, prejudice on the IV. ''Whether the trial court erred in by or interest must be made party, awarding by agent interest to Chair Lance. attorney...." not his Id. at

1377 original). in (emphasis corporation's business; course of a 117 N.E. at it in proceeded the The Court's rationale on the authority cludes incidental necessary, ory corporation "in a usual, that a broad sense proper to effectuate the main through agent, and can always acts act authority expressly conferred. See Cush way" cer no other but there were man, 170 Ind. at 84 N.E. at 760. corporation tain situations Implied authority may also arise from a through agency "act for itself some could showing course of corpo conduct that the corporate inherent in its form." at Id. repeatedly ration has ratified acts of the Thompson, quoting 117 N.E. at Cor same kind. (2d ed.). porations § An attorney acting agent for a aspects Fidelity Three it make less corporation may only perform acts within precedent for the case valuable as at bar. authority granted to him corpo First, Fidelity issue in re- the statute at authority ration. This must be within the quired "party that the shall make ... an powers expressly upon conferred affidavit," corpo while statute the instant ration its charter or statute. specify case does not Under who shall make the Act, required Second, Corporation the Indiana General verification. Ind. district manager Fidelity seq.,2 corporation's in the case no ex- Code 28-1-1-1 et a § press, implied, apparent authority general rights, privileges powers act in corporation litiga- on behalfof the in the power sue and sued in "[to cluded + corporate name," Third, tion. validity the reference to the by corporation's an affidavit made attor- 28-1-2-2(b)(2), appoint such "[t]o officers dictum; ney Fidelity's attorney was did agents corpora and as the of the business attempt not verify petition. to the may require," tion Ind.Code 28-1-2-2(b)(8) added), (emphasis and § A of stat corporation is a creature "(tlo things necessary, do all acts and con ute and practice can neither act in law nor expedient or carry pur venient to out the person. of it through Out court must act poses for it which is formed." agents, its and in generally court it must 28-1-2-2(b)(15). only through agent act an who is a licensed attorney. principles The fundamental re statutory Chair Lance had the au garding agent authority the of an of a thority appoint attorney agent an to corporation substantially are the same as power corporate to exercise its to sue in its applicable agents those to generally. necessary prop name. Incidental acts and Cushman v. Cloverland Mining Coal & Ind, express er to authority effectuate this in (1908), 402, 170 Co. 84 N.E. 759. pleadings clude verification of if attor the authority of attorney an to ney position personal is in the to have agent corporation may act as for a be ex knowledge of the verified facts. Chair press implied. Express or authority may attorney express authority Lance's to charter, provided by-laws the the behalf, attorney sue on its also had corporation, the in a resolution of the board personal knowledge of the facts in the veri of directors not by inconsistent with the petition. fied laws, authority or other written such as a petition by The verification of this the Implied memorandum or authority letter. corporation's attorneys depends on the is consistent with relationship actual of the corporation agent, purpose the and the of the statute's verification not what may requirement others relationship. believe about that because who veri- Implied authority agent petition position of an cor fied the to binds a in the poration only agent if the performing subject is first matter know hand about act appropriate is ordinary appeal. of the Ind.Acts, 149, Repealed by 2. 1986 P.L. effective (Burns Supp.). seq. § 23-1-17-1 et August 1987. Recodified in Ind.Code question ac- the character of the corporation presented, has conferred Where the i.e., question agents in a whether is one of authority on its to act law tual powers, in scope of its fact; capacity within the adequacy competence available administrative channels to an- creating stat- manner consistent with question presented; swer the the extent ute, corpo- further restrict we will not plaintiff or imminence of harm to the if agency prin- Applying ration. well-settled required pursue to administrative reme- promote the interests of third ciples will dies; potential disruptive and the effect predictability uniformity and parties in judicial might intervention have on legislative to the intent of the conform process. creating corporation. Accord- the administrative statutes that the Chair Lance ingly, we conclude Employment v. Board Indiana Wilson adequately review was (1979), 302, 305, Security Division holdings verified. To the extent that 385 N.E.2d 441. Gary Community Community Care In Dept. Indiana State v. of Welfare contrary, they to the

Mental Health are (1980), Stagner Ind.App. 410 N.E.2d disapproved. are Appeals applied the Court of the Wilson II. Exhaustion provider test and found that the Medicaid had not exhausted his administrative reme- Administrative Remedies provider dies. The had initiated a sought judicial re appeal immediately after IDPW informed grant refusal either view of IDPW's him pending that his claims were denied prejudgment interest on the amount with necessity. lack of medical The Court of A final held or administra Appeals had to determine whether IDPW's upon tive decision made remand a court denying provider's letter claims for subject for a factual determination is necessity lack medical was a final order judicial review. Board See State subject merely review or an ad- Dental Examiners v. Levin appealable ministrative decision to the De- Ind. 213 N.E.2d 897. Courts will not partment regulations under the set forth in modify reverse or a final administrative 470 IAC. The Court of concluded: it contrary determination unless to law necessity question Medical is a of fact unsupported by evidence. properly by Department. decidable important given Although party may opportunity It is that judicial a seek develop to a factual review of an administrative decision made application agency record for the ex- remand, pursuant judicial party to a pertise. Similarly, opportunity for must exhaust his administrative remedies self-correction of errors afford- should be returning to a before court second time. Department. judicial ed the question The us Waste of before is thus twofold: may thereby resources be avoided. first, whether IDPW's March 26 letter to attorney agency Lance's was a final Chair 410 N.E.2d at 1351. The court that found review; subject judicial to determination Stagner's claim was a "cost settlement" and, second, agency whether the determi an of administrative with available avenue contrary nation contained in that letter was appeal regulations. under IDPW unsupported by to law or evidence. case, reg As for the instant IDPW provide appeal Whether IDPW's letter of March 26 to ulations administrative 1) applica Goochconstituted a final administrative de- three instances: the denial of an subject 2) termination to provider, review de- tion to become a the rate of pends 3) payment, whether all administrative reme- Medicaid a cost settlement. capable rectifying dies the claimed error 5-1-4(a)(1) (1984). The 470 IAC denial pursued finality. attorney had been to We have set interest and fees is not a "cost by forth the relevant dispute considerations deter- settlement" as defined 470 IAC mining require- whether this Stagner, exhaustion 5-1-8.5. 410 N.E. at 1852. See ment has been met: Where there are no administrative channels question present- answering the capable of court trial was correct in its denial of Chair process not dis- ed, the administrative Lance's motion to correct error. question. rupted review Prejudgment IV. Interest requested Chair Lance first interest on jurisdiction court had The trial amount withheld the initial round of appeal from IDPW's over Chair Lance's appeals. administrative It continued to attorney fees because denial of interest and raise the in its issue Lance had exhausted its administra Chair review, appeal. motion to correct error and juris the court's tive remedies invoked The Court of remanded the case to properly petition for diction with a verified proper IDPW a determination of the review. principal amount due and stated that "the prejudgment is moot." 448 [issue] Attorney III. Fees N.E.2d at 1219. IDPW claims that rule, general party each As a prejudgment statement denied interest. fees, attorney litigation pays his own ab merely Chair Lance it claims that mooted statute, stipulation agreement, a sent proper the issue until a determination of contrary. Trotcky v. Van Sickle the amount due could be made IDPW on (1949),227 Ind. 85 N.E.2d 638. Where Upon judicial remand. review of IDPW's allowed, exceptions general rule are to this pay refusal prejudgment theory fees are recoverable on the amount, interest on this the trial court they damages resulting are from the found that IDPW was liable for interest on wrongful party. other acts Kikkert the now ascertained unlawfully amount (1985), Ind., v. Krumm 474 N.E.2d 503. sight per per year withheld at cent damages, including attorney Claims for judgment accordingly. entered fees, principal must be included in the suit Prejudgmentinterest is allowedto or the claim is waived. Reilly State ex rel. compensate money for loss of the use of Fidelity Guaranty v. U.S. & Co. Balti simple computation a where mathematical more, Md. 31 N.E.2d 58. operate can on an amount for which the principal suit was initiated in Janu- defendant is found to be liable. Ind.Code ary finally adjudicated 1979 and in 1988. 4-22-1-18(c) authorizes a court to enter requested Chair Lance first fees on Janu- providing an affirmative order that the ary request IDPW refused the agency "may compel court action unlaw#ful untimely., The trial court did not address ly unreasonably delayed." withheld or the fee issue and denied Chair Lance's mo- unlawfully trial court found that IDPW tion to correct error. The motion had al- amount, principal withheld the and its or error; leged single the court's failure to properly compelled repayment. der This award statute, however, not authorize the does request Chair Lance's for fees was compel agency pay court to a state to inter request damages a which should money unlawfully have est on withheld. brought in principal been suit. Be- The for inter State is not liable cause Chair Lance failed to include attor payments est on due unless it binds itself ney damages as a fees measure of in the by pay contract or statute to interest. suit, principal principal and the suit was (1891), 204, 26 Carr v. State 127 Ind. N.E. fully adjudicated, it waived the issue in a application sovereign 778. This immuni subsequent proceeding, even where the ty principle from the that a derives State proceeding principal was related to the not authorize its officers to incur obli does See, e.g., suit. Reilly, ex. 218 State rel. gations by or on its behalf contract unless 95, at 31 Ind. N.E.2d at 60. Carolina, statute. United v. North States U.S, Because 211, 920, we find that fees were 34 336 S.Ct. L.Ed. waived, Indiana, we have no need (1890). single excep to consider there a wheth- In is er unlawfully such fees would have been tion: exact recoverable interest amounts exception general as an paid protest. rule. The under Metro- ed as taxes and Centers, (1924), Inc. v. Indiana De munity Care Co. v. State Insurance politan Life Accordingly, partment (1984), Ind. 420. 144 N.E. 194 Ind. Both of App., 468 N.E.2d 602. these cases prejudg- not assess could court the trial subject dating law on this agency. rely on the case against a state ment interest Casualty v. Fidelity & Co. Carroll back is vacat- Appeals' decision The Court 117 N.E. 858. pre- decision on court's The trial ed. at principle This is a of law well-known Its is reversed. issue judgment correct passed by motion to present Lance's statute was of Chair the time denial a sim- legislature. It would have been is af- attorneys' fees issue error on legislature to have made ple matter for firmed. change now seeks to which this Court Although agree I by judicial opinion. do DeBRULER, J., opinion. in joins this majority makes a that the rationale of the DICKSON, J., I-III of this joins parts sense, presume I would not great deal of part IV. as to opinion and dissents legislature province of the invade the PIVARNIK, J., GIVAN, J., with whom change the law this manner. opinion. joins, with dissents outlined in the Court unpub- opinion correct majority TRANSFER TO PETITION ON CIVIL opinion. deny I transfer. lished would GIVAN, Justice, dissenting. PIVARNIK, J., concurs. majority from the respectfully dissent

I the issue of the in this case on opinion judicial re-

verification

view. 4-22-1-14 language in Ind.Code by Acts P.L. recodified

(repealed provides: seq.) 4-21.5-1-1 et

as Ind.Code § aggrieved by party person an "Any of John A. KESLER. In the Matter by any such made order or determination judicial re- entitled to a agency shall be No. 887S602. pro- in accordance with view thereof Supreme of Indiana. Court may be of this act. Such review visions superior by filing with the cireuit 8, 1988. June person county in which such court of REINSTATEMENT ORDER OF resides, county in such any or in carried Supreme determination is to be order 'or now the Indiana Court Comes Commission, Findings enforced, Disciplinary files its petition...." a verified out or and Rec- of Law of Fact and Conclusions expressly Although statute does not Rein- upon the Petition for ommendation signed may not state that the affidavit Kesler, A. filed John statement representing corporation, a be readmit- that the Petitioner recommends type legis- interpreting this the case law practice of law. ted to the consistently held that the verifi- lation has advised, Court, now being duly corporation's And this made cation must be recommenda- finds that the Commission's administrative officer. This executive or and, accordingly, approved majority opinion at the tion should be recognized reinstated. should be the Petitioner top page 4. ORDERED, THEREFORE, AD- IS, IT specifically majority overrules the Peti- AND DECREED holdings Appeals Gary JUDGED of the Court Center, Kesler, hereby reinstated Inc. v. Community Mental Health tioner, A. John Court, attorney at the Bar of as an immediately. (1986),Ind.App., N.E.2d 1341 and effective Com-

Case Details

Case Name: Indiana Department of Public Welfare v. Chair Lance Service, Inc.

Court Name: Indiana Supreme Court

Date Published: Jun 8, 1988

Citation: 523 N.E.2d 1373

Docket Number: 49S02-8806-CV-527

Court Abbreviation: Ind.