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Thursday, August 07, 2008

Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)

For publication opinions today (2):

In LHT Capital LLC v. Indiana Horse Racing Commission, et al. , a 19-page opinion, Judge Brown writes:

LHT asserts that the Commission demanded a $15 million transfer fee. In an August 6, 2007 letter to the Commission’s counsel, counsel for Indiana Downs and LHT complained regarding the Commission’s “illegal attempts to extract $15 million or more from our client.” Indiana Downs and LHT included a draft complaint with the letter and argued that the Commission’s “transfer tax” for non-controlling interests [ILB - but authorized by an emergency rule of the commission] was not authorized by the legislature and was unconstitutional. * * *

The issue is whether the trial court abused its discretion by granting the motion to dismiss for failure to exhaust administrative remedies. * * *

Failure to exhaust administrative remedies deprives the trial court of subject matter jurisdiction. Johnson v. Celebration Fireworks, Inc., 829 N.E.2d 979, 984 (Ind. 2005). Under the Administrative Orders and Procedures Act (“APOA”), “[a] person may file a petition for judicial review under this chapter only after exhausting all administrative remedies available within the agency whose action is being challenged and within any other agency authorized to exercise administrative review.” Ind. Code § 4-21.5-5-4(a). Moreover, a person may obtain judicial review only of an issue that was raised before the administrative agency. Ind. Code § 4-21.5-5-10. * * *

On appeal, LHT argues that the trial court erred by dismissing its petition for judicial review because: (1) it exhausted its administrative remedies by raising the constitutionality and legality of the Emergency Rule before the Commission and by filing a timely petition for judicial review; and (2) it was not required to exhaust its administrative remedies because doing so would be futile and because it is challenging the rule as facially invalid and unconstitutional. * * *

LHT also argues that it was not required to exhaust its administrative remedies because the Emergency Rule was facially invalid or unconstitutional. Under some circumstances, the Indiana Supreme Court has concluded that a litigant may bypass the exhaustion of administrative remedies where “a statute is void on its face,” and “if an agency’s action is challenged as being ultra vires and void.” Ind. Dep’t of Envtl. Mgmt. v. Twin Eagle LLC, 798 N.E.2d 839, 844 (Ind. 2003). * * *

However, unlike both Tioga Pines and Twin Eagle, LHT did not file a declaratory judgment action challenging the regulation; rather, LHT brought a petition for judicial review of the Commission’s order allowing it to transfer ownership of its shares of Indiana Downs. * * *

Because LHT’s arguments regarding the validity of the Emergency Rule are mainly issues of law, we might have reached a different result if LHT had simply filed a declaratory judgment action rather than pursuing the settlement with the Commission. * * * However, having pursued the settlement with the Commission and having failed to present its arguments regarding the validity of the Emergency Rule, LHT failed to exhaust its administrative remedies.

In summary, we conclude that LHT did not argue to the Commission that the Emergency Rule was invalid and unconstitutional. LHT’s failure to raise the issue with the Commission is not excused by futility or by its challenge to the constitutionality of the rule. Because LHT failed to exhaust its administrative remedies, the trial court did not have subject matter jurisdiction and properly granted the Commission’s motion to dismiss. * * * Given our resolution of this issue, we express no opinion on LHT’s argument that the Emergency Rule is facially invalid and unconstitutional.9 For the foregoing reasons, we affirm the trial court’s grant of the motion to dismiss. Affirmed.

In Craig Cross v. Victoria Cross , a 17-page, 2-1 opinion, Judge Brown writes:
Craig Cross appeals the trial court’s grant of Victoria Cross’s petition for modification of child support and the denial of his petition to claim their children for tax exemption purposes. Craig raises five issues, which we consolidate and restate as: I. Whether the trial court abused its discretion by granting Victoria’s motion to withdraw admissions; II. Whether the trial court abused its discretion by granting Victoria’s petition for modification of child support; and III. Whether the trial court erred when it denied Craig’s petition to claim their children for tax exemption purposes. We affirm in part, reverse in part, and remand. * * *

For the foregoing reasons, we affirm the trial court’s grant of Victoria’s motion to withdraw admissions, its exclusion of V.E.C.’s SSI from its determination of Craig’s child support obligation, and its denial of Craig’s petition to claim the children for tax exemption purposes. We reverse the trial court’s order crediting Victoria for her daycare expenditure and remand for proceedings consistent with this opinion. In this regard, the trial court is free to enter a written finding articulating its reasons for deviating from the Child Support Guidelines or, alternatively, to adjust Craig’s child support obligation without crediting Victoria for the daycare expenditure.

MATHIAS, J. concurs
BAKER, C. J. dissents in part with separate opinion [which begins] I respectfully dissent from the majority’s conclusion regarding Victoria’s weekly childcare expenses. I believe that the majority’s application of the Child Support Guidelines is overly literal. The record herein reveals that Victoria was a full-time caregiver for her disabled daughter and a part-time caregiver for a patient with Alzheimer’s Disease. In fact, Victoria often cared for both at the same time, bringing her daughter with her to the patient’s home. It is certainly reasonable that Victoria sought a break from her responsibilities once a week for five hours. That break likely gave Victoria an opportunity to relax and recharge so that she could continue to care for her daughter and maintain her paying job.

NFP civil opinions today (0):

NFP criminal opinions today (1):

William Le'Shawn Thomas v. State of Indiana (NFP)

Posted by Marcia Oddi on August 7, 2008 12:56 PM
Posted to Ind. App.Ct. Decisions