*1 omitted). That section further {footnotes
states, "By ... force of statute service proper- be effective when the notice is
ly mailed, regardless receipt of its
addressee; in such case the risk of miscar- or failure to deliver on the ad-
riage (footnotes omitted).
dressee." Our Assembly
General could have made service it mailing,
effective on but did not. There-
fore, Scoft, and we will adhere to we re- hearing.
verse and remand for a new
Reversed and remanded.
BRADFORD, J., FRIEDLANDER,
J., concur.
INDIANA FAMILY AND SOCIAL ADMINISTRATION,
SERVICES
Appeliant-Respondent, MEYER, Deceased,
Alice V. Now Rynn,
Dianne M. Trustee of the Alice Meyer Dated
V. Trust December
2001, Appellee-Petitioner.
No. 69A01-0807-CV-358. Appeals
Court of of Indiana.
Jan. *2 review because the Trust did timely file the agency record or seek
an additional extension of time in which to do so. We restate the issue as: whether the trial court had discretion to respond to by granting a belated extension of time. History
Facts and Procedural November of Meyer, aged then seventy-six, established the Trust. She conveyed a remainder interest in her farm to the Trust and retained a life estate. On September 22, 2004, Meyer applied to the Ripley County Family Office-Division of Resources for Medical Assistance to the Aged. The application was denied for fail- Gregory Zoeller, F. Attorney General of ure to offer non-exempt real property for Indiana, Barrow, H. Deputy Frances At- sale. General, torney IN, Indianapolis, Attor- Meyer again applied for
neys Appellant. assistance to aged September 9, 2005. After a Denmure, Douglas Aurora, IN, R. Attor- benefits, second denial of Meyer requested ney Appellee. hearing. She died on April Her family requested members medical OPINION assistance for Meyer services to from Sep- BAILEY, Judge. tember 2005 until her death. A hearing Summary Case was conducted on September 6, 2006 to Meyer's determine eligibility for benefits Meyer Alice ("Meyer") V. sought Medic- before her death. benefits, aid penalized but was because of a recently-preceding property transaction. 18, 2006, On October the ALJ entered death, After Meyer's Rynon, Dianne Trus- Findings of Fact and Conclusions Law ("the tee of the Alice Meyer V. Trust determining scope of a penalty period Trust"), petitioned review of a implicated by asset transfers within the final by action Family "60 month look back period for determin ("the and Social Services Administration ing the existence of a violative transfer." FSSA"). The FSSA moved to dismiss the (App.19.) However, penalty was not to jurisdiction. The trial imposed prior County Office's court denied the dismiss and determination of appellant "whether the corrected error in the Administrative Law adequate received compensation from her ("ALJ") Judge order adjusting the ba- (App.20.) children." The matter was re sis of a computation mathematical pen- manded to the Office "to redeter alty purposes. We affirm. appellant's mine the eligibility for Medical Assistance to Aged in line
Issue Findings (App.20.) Fact[.]" presents The FSSA the sole issue of whether the trial court was divested of The ALJ apparent decision contained an to address the discrepancy. Trust's Finding of Fact No. 15 indi- Jurisdiction failure to file the entire farm was that the value of cated $210,000.00 the Conclusions Law while the Trust filed a Re- April On Record, Agency to File Belated quest of the re- the value portion stated *3 $210,000.00. by the trial court. The granted interest was which was mainder 27, an April that the ALJ used record on alleged agency Trust also Trust filed determining the when incorrect divisor 2007.
penalty period. 22, 2007, denied May On the trial court 18, 2006, Secretary of
On November court also motion to dismiss. The trial affirming a final order the FSSA issued for certification petition denied the FSSA's 8, of the ALJ. On December the decision and, on June interlocutory appeal of an petitioned for re- the Trust remanding an order to the entered agency final action. The Trust view aged assistance Ripley County office for Action, Agency Final a Notice of attached any applica- instructions to calculate decision, Request Agency Re- the ALJ upon a inter- penalty ble based remainder view, Support in and Memorandum $104,073.90 opposed est as petition judi- Agency Review. $210,000.00. appeals. The FSSA now review, in alleged pertinent cial the Trust and Decision Discussion part: I. Standard Review in the 10. the facts set forth Under appellate review of rul- The standard Decision, in- the value of remainder jurisdictional ings on motions to dismiss on $104,078.90 only terest transferred was the trial grounds depends on whether $210,000 was the value of and not which facts, so, disputed and if court resolved in the entire farm which was used the trial court conducted an evi- whether Judge. by the Administrative Law dentiary hearing paper or ruled on a rec- 15, 2007, the (App.8.) On March FSSA Magness, ord. GKN Co. v. 744 admitted the truth of the answered and We review de novo paragraph 10. averment for lack of ruling on a motion to dismiss granted The Trust had been an exten or, disputed if the facts are not sion of time to transmit within which here, paper the court rules on a 5, 2007, agency record until March but did not file the record as of that date Analysis IIL. extension of time. or seek an additional alleges the trial FSSA 12, 2007, April On FSSA filed its Indiana court "was divested 12(B)(1) 12(B)(2)1 Trial Rule and the Trusts failure to to dismiss the Trust's case" due to review, agency. Appellant's file the record.2 Brief contending that the trial responds that it substan- jurisdiction because of the Trust's at 5. The Trust lacked considered, official- a statement of matters pertains to dismissal 1. Trial Rule noticed, jurisdiction over the proof objections lack of ly proffers of and them, 12(B)(2) pertains findings, rulings proposed re- to dismissal person. jurisdiction over the orders, exceptions, quested transcript, any prepared for the ALJ and final Indiana Code Section 4-21.5- Pursuant order, order, rehearing, nonfinal or order on 3-33(b), an record consists of notices date submitted to the staff memoranda or order, proceedings, prehearing of all motions, ALJ, placed on the record after and matters briefs, pleadings, petitions, requests, parte an ex communication. rulings, and intermediate evidence received tially complied statutory provisions dates dismissal or rather confers upon the because it provided "a record" consisting trial court some discretion. of exhibits attached to its judi- In interpreting statute, goal is to review, cial sufficient to disclose an obvious give effect to the General Assembly's in scrivener error. Appellee's Brief at 4. Ad- tent. Dev., Porter LLC First Nat'l ditionally, the Trust argues that, prac- as a Bank Valparaiso, 866 matter, tical the county caseworker to (Ind.2007). Where a statute is unambigu whom the matter is routed upon remand ous, we read words and phrases for their must be provided guidance. He or she plain and ordinary meaning. Id. *4 would, without correction of the ALJ or- Cause is defined as "I. Something that der, be required implement an order produces an effect or result ... 2. A despite facial error and internal inconsis- ground for legal action" and "1b. a reason tency. such, As the Trust contends that or motive for an action or condition." the trial court properly ordered correction BLACKS LAW DICTIONARY 212-13 of error and its judgment is not void for (7th ed.1999); and WEBSTER'S THIRD lack jurisdiction. NEW INTL (2002). DICTIONARY 356 Judicial review of agency action is gov- There is a significant difference between erned by the Administrative Orders and "cause for dismissal" and "shall dismiss." ("AOPA"). Procedures Act See Ind.Code Our review indicates that the phrase "shall § 4-21.5-5-1. Chapter 5 of AOPA provides dismiss" appears in at forty-four least stat- "the exclusive means judicial review of utes. When the General Assembly wants an agency § action." I.C. 4-21.5-5-1. An to use this phrase, making dismissal man- aggrieved person may seek review datory, it does By contrast, so. phrase of a final ageney by action filing petition "cause for dismissal" appears in only three with the trial court within thirty days of 5-13(b) statutes-AOPA and two statutes the action challenged. §§ Ind.Code 4- government related to employment. See 21.5-5-2 to -5. thirty Within days after the 10-14-3-26(b) § Ind.Code (prohibiting po- filing or within further by time allowed litical affiliation as a cause for dismissal of by law, other petitioner emergency management employees) and shall transmit to the court the original § or a Ind.Code 20-28-8-7 (concerning termi- certified copy of the agency nation record for superintendents). school Failure review of the agency action. to comply strictly Ind.Code with AOPA 83-83 and 4-21.5-5-13(a). § AOPA 5-13 is a dismissal, reason for sug- gesting that the trial court could find rea- An extension of time in which to file the sons not to appeal. dismiss the Thus, by record shall granted be by the trial court using "cause for dismissal" rather than good cause. See Ind. State Bd. of dismiss," "shall we conclude that the Gen- Educ. v. Brownsburg Cmty. Corp., Sch eral Assembly intended empower, but (cit 333 (Ind.Ct.App.2004) not require, a trial court to dismiss an ing 4-21.5-5-18(b)). § Ind.Code The stat appeal. ute further provides that failure to file the agency record within the permitted, time Here, the Trust timely peti filed a including period extension by ordered tion for review timely request court, is "cause for dismissal" of the ed an time, extension of properly invoking petition for by the court. Id. The jurisdiction of the trial pursuant court question that arises in this case is whether to Indiana Code Section 4-21.5-5-13. How the language "cause for ever, dismissal" man- the Trust did not file the agency jurisdic- Subject "jurisdiction." failed deadline the extension hear and determine power tion is of time with extension a second request class which general record.3 ageney cases of to file
in which fatal, cit Personal belongs. this failure proceeding argues particular FSSA interpreted have appropriate requires of cases ing a series jurisdiction See of Indiana provisions time effected over process juris mandatory tion 4-21.5-5-13 exist, deci- a court's these two Where v. Indiana Clendening dictional. legal be set aside sion Admin., & Soc. Servs. Family and not appeal direct through only "It is (stating phras- Other attack. collateral through provisions the time well-established practice, to Indiana recently common es Indiana Code case," particular "jurisdiction like to a precedent a condition mandatory and legal er- actual confuse to consider acquiring ceasing off be better ror, will and we review"); Mi accord such characterizations. Sec. Corp. *5 General croVote of of Office 21, State, 25 890 N.E.2d that Here, question no there is Id. at 540. jurisdic "lost the (finding that juris- possessed Court Ripley Circuit the statutory of light in case" the tion over case matter of this subject the diction over denied; Indiana non-compliance), makes no The FSSA parties. over the Cmty. Brownsburg v. Educ. State Bd. of instead refers to this effect but argument (Ind.Ct. 813 N.E.2d Corp., Sch. case." the "jurisdiction over a lack of to (failure the stat comply to App.2004) variance.") particular the over "Jurisdiction "immaterial an ute was the FSSA contends the abolished." Accordingly, something "now case" is grant to court here lacked trial 852 N.E.2d Shoopman, v. Packard its belatedly and to file leave Packard, (Ind.2006). Tax Court the 930 is void.4 the merits judgment on "jurisdiction concept of the invoked had Clay that the concluded the case" outset, we observe At the to objection her Township Assessor waived pri- enacted 4-21.5-5-18 was Section of a untimely Supreme of our Indiana or to the decision the appeal, at 929. On id. See N.E.2d 538 review. 849 v. KS. Court State file a failure to juris asserted clarified Assessor KS. Court deprived judicial review concepts: dictional jurisdic subject matter Tax Court the courts, the nation's rest of Like the 33-26-6- tion, citing Indiana Code kinds of two possess courts Indiana trial delay advantage to be- enjoy a tactical well control party is in noteworthy that one 3. It is the time- control of litigant who lacks party is yet other cause production the investigate diligent absolutely FSSA is non-production. The table must dismissal record having needed entity availability control and file the record record for compiling extensions, charged with pain dismiss- upon motions § 4-21.5-3-33. Ind.Code judicial review. See al. Yet, party. opposing is also the FSSA aggrieved party places This scheme jurisdic- subject matter court lacks When a disadvantage, be- at some decision tion, and have no ab initio are void its actions disincentive agency has some cause the Proksch, 832 Allen whatsoever. effect FSSA, at promptly. prepare (Ind.Ct.App.2005). 1095 with a trial not served long as it is least so might compel, upon motion order
79
provided
which
at the relevant time: "If
Because the timeliness of filing does not
taxpayer
comply
fails to
statu-
affect the subject
matter
tory requirement
for the initiation of an
the Tax Court, any objection to the
original tax appeal, the tax court does not
timeliness of filing a procedural
rather
have jurisdiction."
Packard,
See
than jurisdictional error
that can be
N.E.2d at 929.
waived if not raised at the appropriate
KS.,
time.
risdiction of the Tax Court
personal
nor
over the
Rather, it
Jurisdiction
There was
procedural
substantial
jurisdictional
only in the sense that it
compliance by the Trust and obvious sub
is a statutory prerequisite to the docket-
stantive error in the ALJ decision.
In
ing of an appeal in the Tax Court. That
deed,
parties
both
agreed that
the ALJ
issue is properly
raised
means of a
decision contained error.
In order for the
12(B)(1)
under Rule
caseworker to do his or
job
her
properly,
for
failure
to
the error must be corrected. We cannot
claim,
state a
depending on whether the
reverse the trial court's correction of er
claimed defect is apparent on the face of
ror, because to do so would be to condone
the petition.
an absurd result. Where the trial court is
Packard,
ject Izaak Walton laid out error, reasoning dismissal automatic America, DeKalb Inc. v. League the trial upon confer be read must (Ind.Ct. N.E.2d 957 Office, circumstances. Surveyor's in some discretion court There, re we denied. App.2006), discretion has trial as the Just construc strict, hyper-technical time, jected subject to an extension grant all require would AOPA of the tion requirement, cause" "good pro during an generated paper to find discretion has the part made to be ceeding not, upon a should dismissal" "subject Instead, at Id. review. be dismissed. showing, proper relevant materials all where Affirmed. on presented question sufficient. submitted, record is in result BARNES, J., concurs here, what occurred That is at 966-67. opinion. in result. I concur narrow basis this and on opinion. MATHIAS, J., dissents dissenting. MATHIAS, Judge, concurring in result. BARNES, Judge, timely and dissent. respectfully I Judge because here in result I concur is a ageney complete eye-to-eye I do see
Bailey and acquisition to the precedent condition fil- I believe "discretion." courts trial judi consider a reason are there requirements ing Therefore, the reasons cial review. in his dissent. out points Mathias Judge Edu Board State in Indiana expressed trial am concerned I Specifically, Community School Brownsburg cation "dis- to exercise tempted might courts N.E.2d 330 Corp., 813 *7 too lib- untimely filings regarding cretion" America, Inc. League Walton Izaak absolute, filing deadlines erally. The Office, 850 County Surveyor's DeKalb For clear. made court has supreme de (Ind.Ct.App.2007), a review- settled "It is well example, I would re (Mathias J., dissenting), nied ex- for an request may grant ing FSSA's denial trial court's verse section under tension dismiss. during made request only if AOPA following thirty days initial any previ- or within Wayne extension." ously granted Appeals Bd. Assessment Tax
Property Druids-Grove Ancient Order
v. United No.