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

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.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-2522 | July 9, 2019 Page 4 of 6 [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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