                                                                 FILED
                                                            Dec 02 2016, 9:44 am

                                                                 CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Julia Blackwell Gelinas                                   David L. Steiner
Thomas E. Wheeler, III                                    Kyle Hunter
Maggie L. Smith                                           Deputies Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana

                                                          Gregory F. Hahn
                                                          Bryan H. Babb
                                                          Bradley M. Dick
                                                          Bose McKinney & Evans, LLP
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

First American Title Insurance                            December 2, 2016
Company,                                                  Court of Appeals Case No.
Appellant-Petitioner,                                     49A05-1512-PL-2309
                                                          Appeal from the Marion Superior
        v.                                                Court
                                                          The Honorable Michael D. Keele,
Stephen W. Robertson,                                     Judge
Insurance Commissioner of the                             Trial Court Cause No.
state of Indiana, in his official                         49D07-1105-PL-19374
capacity, on behalf of the
Indiana Department of
Insurance,
Appellee-Respondent.




Barnes, Judge.

Court of Appeals of Indiana | Opinion 49A05-1512-PL-2309 | December 2, 2016           Page 1 of 17
                                                 Case Summary
[1]   First American Title Insurance Company (“FATIC”) appeals the trial court’s

      dismissal of its complaint against Stephen Robertson, Insurance Commissioner

      of the State of Indiana (“Commissioner”), in his official capacity, on behalf of

      the Indiana Department of Insurance (“IDOI”). We affirm.


                                                          Issue
[2]   FATIC raises two issues, which we consolidate and restate as whether the trial

      court properly dismissed FATIC’s Writ of Prohibition and Action for Mandate,

      Request for Declaratory Relief, and Verified Amended Petition for Judicial

      Review against IDOI.


                                                          Facts
[3]   In March 2009, the IDOI issued a market conduct examination warrant to

      FATIC and retained a third party to conduct the examination.1 The third party

      filed its Verified Market Conduct Examination Report with the IDOI on

      September 30, 2010. The IDOI forwarded the report to FATIC on October 18,

      2010, and FATIC filed a response on November 10, 2010. Under Indiana

      Code Section 27-1-3.1-11(a), the Commissioner was required to enter an order




      1
        This market conduct examination was authorized by Indiana Code Chapter 27-1-3.1 and was part of an
      industry-wide investigation regarding title insurance in Indiana. See also Robertson v. Ticor Title Ins. Co. of
      Florida, 982 N.E.2d 9 (Ind. Ct. App. 2012), trans. denied, and Com. Land Title Ins. Co. v. Robertson, 5 N.E.3d
      394 (Ind. Ct. App. 2014), trans. denied.

      Court of Appeals of Indiana | Opinion 49A05-1512-PL-2309 | December 2, 2016                           Page 2 of 17
      within thirty days after the end of the period allowed for the receipt of written

      submissions or rebuttals:


              (1) adopting the examination report as filed or with modification
              or corrections;


              (2) rejecting the examination report with directions to the
              examiners to reopen the examination for purposes of obtaining
              additional data, documentation or information, and refiling the
              report under this chapter; or


              (3) calling for an investigatory hearing with no less than twenty
              (20) days notice to the company for purposes of obtaining
              additional documentation, data, information and testimony.


      Ind. Code § 27-1-3.1-11(a).


[4]   The Commissioner failed to enter an order. On December 20, 2010, the

      Commissioner requested a retroactive extension of time, to which FATIC

      agreed. The Commissioner again failed to file a timely order and requested

      another retroactive extension of time, to which FATIC again agreed. Although

      the Commissioner was supposed to file his order by February 4, 2011, he failed

      to do so. On March 21, 2011, the Commissioner requested that FATIC agree

      to another retroactive extension of time, but FATIC declined.


[5]   Despite the failure to issue a timely order, the Commissioner issued an order on

      April 15, 2011, appointing an administrative law judge and ordering that an

      investigatory hearing be held. On May 17, 2011, FATIC filed a petition for

      judicial review and declaratory relief with the trial court. In the petition,

      Court of Appeals of Indiana | Opinion 49A05-1512-PL-2309 | December 2, 2016   Page 3 of 17
      FATIC sought relief pursuant to the Administrative Orders and Procedures Act

      (“AOPA”), Indiana Code Chapter 4-21.5-1, and the Uniform Declaratory

      Judgment Act, Indiana Code Chapter 34-14-1. FATIC argued that the order

      was void because it was not timely filed. Rather than file a complete agency

      record, FATIC filed only the documents necessary to address the timeliness

      issue that was raised.


[6]   IDOI filed a motion to dismiss, arguing in part that the petition should be

      dismissed because FATIC failed to file the complete agency record. The trial

      court rejected that argument, concluding that FATIC had provided all of the

      documents necessary to address the principal issue presented. Then, in May

      2012, the trial court entered finding of fact and conclusions thereon denying

      FATIC’s petition for judicial review and declaratory judgment. The trial court

      concluded that “FATIC has failed to demonstrate that it was prejudiced by

      [IDOI’s] failure to act on the Report within thirty (3) days of FATIC’s response

      or within thirty (30) days of the last agreed extension.” Appellant’s App. Vol. I

      p. 142.


[7]   FATIC appealed this decision and argued that the Commissioner’s failure to

      comply with the statutory deadline rendered his order void and that the trial

      court erred by requiring a separate showing of prejudice. Although FATIC

      requested that this court reverse the trial court’s order and grant the petition for

      judicial review and declaratory judgment, FATIC did not separately discuss the

      declaratory judgment action in its appeal. The IDOI cross-appealed, arguing

      that FATIC’s failure to exhaust its administrative remedies deprived the trial

      Court of Appeals of Indiana | Opinion 49A05-1512-PL-2309 | December 2, 2016   Page 4 of 17
      court of subject matter jurisdiction and that FATIC failed to submit sufficient

      materials for judicial review. On the cross-appeal issues, we concluded that the

      IDOI’s exhaustion of administrative remedies argument was waived because it

      was raised for the first time on appeal. First American Title Ins. Co. v. Robertson ex

      rel. Indiana Dept. of Ins., 990 N.E.2d 9, 12-13 (Ind. Ct. App. 2013). Relying in

      part on Izaak Walton League of Am., Inc. v. DeKalb Cnty. Surveyor’s Off., 850

      N.E.2d 957, 965 (Ind. Ct. App. 2006), trans. denied, we also held that the

      materials submitted by FATIC were sufficient for judicial review, and we

      affirmed the trial court’s denial of IDOI’s motion to dismiss. As for the issues

      presented by FATIC, we held that, because the Commissioner failed to issue a

      timely order, its order was void. We also concluded that FATIC was not

      required to demonstrate prejudice. Although the declaratory relief claim was

      not addressed in the appeal, we reversed the trial court’s denial of FATIC’s

      petition for judicial review and declaratory relief and remanded with

      instructions to grant the petition.


[8]   The IDOI sought transfer to our supreme court, which was granted. See First

      American Title Ins. Co. v. Robertson, 19 N.E.3d 757 (Ind. 2014). Our supreme

      court summarily affirmed the portion of our opinion holding that the IDOI’s

      exhaustion of administrative remedies claim was waived. In a footnote, the

      supreme court also summarily affirmed “that portion of the Court of Appeals

      opinion declaring the Commissioner’s hearing order untimely and void, as well

      as that portion of the opinion declaring that a petitioner seeking judicial review

      of an agency decision need not demonstrate a separate showing of prejudice.”


      Court of Appeals of Indiana | Opinion 49A05-1512-PL-2309 | December 2, 2016   Page 5 of 17
       Id. at 760 n. 3. However, the court then held that, because FATIC failed to file

       the complete agency record with the trial court, its petition for judicial review

       could not be considered. See id. at 762-63 (discussing Teaching Our Posterity

       Success, Inc. v. Ind. Dept. of Educ., 20 N.E.3d 149, 155 (Ind. 2014) (abrogating

       Izaak Walton and similar cases)). Thus, the court held that the trial court erred

       by failing to grant IDOI’s motion to dismiss the petition.


[9]    The IDOI then sought rehearing of the supreme court’s opinion and took issue

       with the language of the footnote that summarily affirmed a portion of our

       opinion. IDOI noted a “substantial tension, if not outright conflict” between

       ordering the dismissal of FATIC’s judicial review petition and summarily

       affirming the Court of Appeals’ opinion regarding the timeliness of the

       Commissioner’s order and FATIC’s failure to exhaust administrative remedies.

       First American Title Ins. Co. v. Robertson, 27 N.E.3d 768, 769 (Ind. 2015). The

       supreme court agreed and granted rehearing “to delete the first clause of

       footnote three.” Id. The court affirmed “[i]n all other respects. . . .” Id.

       Consequently, the court deleted that portion of the footnote that summarily

       affirmed the “Court of Appeals opinion declaring the Commissioner’s hearing

       order untimely and void” but left intact the portion of the footnote that

       summarily affirmed our opinion “declaring that a petitioner seeking judicial

       review of an agency decision need not demonstrate a separate showing of

       prejudice.” First American Title Ins. Co., 19 N.E.3d at 760 n.3.


[10]   On remand to the trial court, FATIC filed a “Writ of Prohibition and Action for

       Mandate, Request for Declaratory Relief, and Verified Amended Petition for

       Court of Appeals of Indiana | Opinion 49A05-1512-PL-2309 | December 2, 2016   Page 6 of 17
       Judicial Review.” Appellant’s App. Vol. I p. 39. In the section regarding its

       request for declaratory relief, FATIC alleged that an administrative agency’s

       void action is subject to collateral attack at any time. Id. at 55 (citing Mies v.

       Steuben Cnty. Bd. of Zoning Appeals, 970 N.E.2d 251, 258 (Ind. Ct. App. 2012),

       trans. denied). IDOI filed a motion to dismiss FATIC’s filing. IDOI argued, in

       part, that AOPA was FATIC’s exclusive remedy and that, based on the

       supreme court’s opinion, FATIC’s AOPA claim failed. IDOI also argued that

       FATIC’s writ of prohibition and mandate and declaratory judgment actions

       failed because they were based on the same conduct as the AOPA claim.

       According to IDOI, FATIC could “not simply bring an AOPA claim dressed as

       a declaratory judgment action.” Id. at 191. IDOI argued that the writ of

       prohibition and mandate and declaratory judgment claims were barred by res

       judicata and the law of the case doctrine. In response, FATIC argued that res

       judicata and the law of the case doctrine were inapplicable and that the

       Commissioner’s void order was subject to collateral attack at any time.


[11]   The trial court granted IDOI’s motion to dismiss. The trial court “dismisse[d]

       the original Verified Petition consistent with the Supreme Court’s clear

       directive.” Appellant’s Appendix Vol. I p. 16. The trial court also concluded

       that the “declaratory judgment was not a separate claim that could survive

       dismissal” and that FATIC could not amend the petition. Id. at 17. The trial

       court dismissed the mandate and declaratory judgment claims in the amended

       petition based on res judicata. Finally, the trial court concluded that AOPA

       was the exclusive means for judicial review of IDOI’s action and, “where an


       Court of Appeals of Indiana | Opinion 49A05-1512-PL-2309 | December 2, 2016   Page 7 of 17
       administrative remedy is available, filing a declaratory judgment action is not a

       suitable alternative.” Id. at 19 (citing Outboard Boating Club of Evansville, Inc. v.

       Ind. State Dep’t of Health, 952 N.E.2d 340, 343 (Ind. Ct. App. 2001), trans.

       denied). The trial court determined that, “[b]ecause the AOPA provided

       [FATIC] with ‘an administrative remedy,’ [FATIC] may not bring declaratory

       judgment and mandate claims raising the same issue.” Id. The trial court

       dismissed FATIC’s petitions and remanded to IDOI for further proceedings.

       FATIC filed a motion to correct error, which the trial court denied after a

       hearing.


[12]   FATIC sought to stay the administrative proceedings, which the administrative

       law judge and the trial court denied. FATIC then initiated this appeal, and at

       FATIC’s request, this court stayed all underlying administrative proceedings

       pending completion of this appeal.


                                                    Analysis
[13]   FATIC appeals the dismissal of its Writ of Prohibition and Action for Mandate,

       Request for Declaratory Relief, and Verified Amended Petition for Judicial

       Review. A motion to dismiss for failure to state a claim tests the legal

       sufficiency of the claim, not the facts supporting it. Thornton v. State, 43 N.E.3d

       585, 587 (Ind. 2015). “When ruling on a motion to dismiss, the court must

       ‘view the pleadings in the light most favorable to the nonmoving party, with

       every reasonable inference construed in the non-movant’s favor.’” Id. (quoting

       Kitchell v. Franklin, 997 N.E.2d 1020, 1025 (Ind. 2013)). We review a trial


       Court of Appeals of Indiana | Opinion 49A05-1512-PL-2309 | December 2, 2016   Page 8 of 17
       court’s grant or denial of a Trial Rule 12(B)(6) motion de novo. Id. “We will

       not affirm such a dismissal ‘unless it is apparent that the facts alleged in the

       challenged pleading are incapable of supporting relief under any set of

       circumstances.’” Id. (quoting City of E. Chicago, Indiana v. E. Chicago Second

       Century, Inc., 908 N.E.2d 611, 617 (Ind. 2009)).


[14]   FATIC argues that the trial court’s dismissal of its action was improper because

       it was not required to exhaust administrative remedies before bringing a

       declaratory judgment action regarding an agency action that was ultra vires and

       void. FATIC also argues that its writ of prohibition and action for mandate

       and its declaratory judgment action are not barred by res judicata. IDOI

       responds that FATIC’s action is barred by res judicata.


[15]   We begin by noting, as IDOI does, that FATIC makes no argument regarding

       its AOPA claim, which was again dismissed by the trial court. Consequently,

       we will address only FATIC’s claims for writ of prohibition and mandate and

       declaratory judgment.


[16]   We first address IDOI’s argument that FATIC’s claims are barred by res

       judicata. The doctrine of res judicata operates to preclude the litigation of

       matters that have already been litigated. Northlake Nursing & Rehab. Ctr., L.L.C.

       v. State Dep’t of Health, 34 N.E.3d 268, 273 (Ind. Ct. App. 2015). The principle

       of res judicata is divided into two branches: claim preclusion and issue

       preclusion. Id. “Claim preclusion applies where a final judgment on the merits

       has been rendered which acts as a complete bar to a subsequent action on the


       Court of Appeals of Indiana | Opinion 49A05-1512-PL-2309 | December 2, 2016   Page 9 of 17
       same issue or claim between those parties and their privies.” Id. “Issue

       preclusion, also referred to as collateral estoppel, bars the subsequent

       relitigation of the same fact or issue where the fact or issue was necessarily

       adjudicated in a former suit and the same fact or issue is presented in a

       subsequent action.” Id. Claim preclusion is relevant here.


[17]   “Claim preclusion applies where a final judgment on the merits has been

       rendered and acts as a complete bar to a subsequent action on the same issue or

       claim between those parties and their privies.” Afolabi v. Atl. Mortg. & Inv. Corp.,

       849 N.E.2d 1170, 1173 (Ind. Ct. App. 2006). “When claim preclusion applies,

       all matters that were or might have been litigated are deemed conclusively

       decided by the judgment in the prior action.” Id. In order for a claim to be

       precluded, the following four requirements must be satisfied:


                    (1) the former judgment must have been rendered by a court
                        of competent jurisdiction;


                    (2) the former judgment must have been rendered on the
                        merits;


                    (3) the matter now in issue was, or could have been,
                        determined in the prior action; and


                    (4) the controversy adjudicated in the former action must have
                        been between the parties to the present suit or their privies.


       Id. In determining whether the doctrine should apply, it is helpful to inquire

       whether identical evidence will support the issues involved in both actions. Id.



       Court of Appeals of Indiana | Opinion 49A05-1512-PL-2309 | December 2, 2016   Page 10 of 17
[18]   There is no question here that the former judgment was rendered by a court of

       competent jurisdiction, that the former judgment was rendered on the merits,

       and that the controversy adjudicated in the former action was between the

       parties to the present suit. FATIC, however, argues that res judicata should not

       bar its action because the issue of whether the Commissioner’s order was void

       was presented in the former action, in the appeal before this court, and in the

       appeal before our supreme court but the supreme court chose not to resolve it.

       According to FATIC, “when a party affirmatively raises an issue on appeal and

       the appellate court chooses not to address that issue, Indiana law holds that res

       judicata applies only to the issues actually decided, it does not apply to issues

       raised by the parties but never addressed by the court.” Appellant’s Br. p. 40

       (citing Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006), Helms v. Rudicel, 986

       N.E.2d 302, 308 (Ind. Ct. App. 2013), trans. denied, Think Tank Software Dev.

       Corp. Chester, Inc., 988 N.E.2d 1169, 1176-77 (Ind. Ct. App. 2013), trans. denied).


[19]   IDOI relies on and the trial court cited to Richter v. Asbestos Insulating & Roofing,

       790 N.E.2d 1000 (Ind. Ct. App. 2003), trans. denied, which we find persuasive.

       In Richter, a worker filed a complaint against multiple companies alleging that

       he had been exposed to asbestos by the companies. He reached a settlement

       with some of the companies and voluntarily dismissed his complaint with

       prejudice. He later died, and his estate filed a wrongful death action against

       multiple companies, including four companies that had been dismissed with

       prejudice from the worker’s original action. The companies filed a motion to

       dismiss pursuant to Indiana Trial Rule 12(B)(6), arguing that the estate’s suit


       Court of Appeals of Indiana | Opinion 49A05-1512-PL-2309 | December 2, 2016   Page 11 of 17
       was barred because the worker had brought his personal injury claim to

       judgment during his lifetime. The trial court determined that collateral estoppel

       and res judicata barred the estate’s claims.


[20]   On appeal, we noted:


               Although the Estate asserts that the wrongful death claim filed in
               January 2002 necessarily differs from the claims that were
               initially brought in 1997, we note that Terry’s alleged exposure to
               asbestos containing various products manufactured or distributed
               by the companies, evidence of Terry’s development of lung
               cancer as a result of the alleged exposure to asbestos from the
               products as well as evidence regarding the allegedly defective
               products that contained asbestos were issues in both cases. In the
               action filed in the Allen Circuit court, the [Estate] alleged
               negligence and outrageous conduct, strict liability, conspiracy,
               breach of warranty, and loss of consortium, all of which were
               based upon Terry’s exposure to asbestos and the subsequent
               diagnosis of lung cancer. In essence, [the Estate] is now
               attempting to prove a wrongful death claim by alleging
               negligence and strict liability based on the same claimed
               exposures to the products that were asserted in the first action.
               Therefore, it can be said that the claims brought by [the Estate]
               are “inextricably woven” with the first action and could have
               been litigated in that proceeding.


       Richter, 790 N.E.2d at 1003. We concluded:


               [I]t is apparent that Terry’s claimed disability from asbestos
               exposure and the companies’ alleged misconduct could have
               been litigated in the earlier court action. [The Estate] is merely
               asserting those same claims in the subsequent action that she
               chooses to label as a wrongful death action. Permitting [the
               Estate] to re-litigate those claims after Terry’s death would

       Court of Appeals of Indiana | Opinion 49A05-1512-PL-2309 | December 2, 2016   Page 12 of 17
                effectively grant her a second bite at the apple. The [Estate] had
                voluntarily dismissed their claims against the defendants on
                October 28, 1999, and the companies had prepared in
                anticipation of that trial. The companies would essentially be
                penalized in the event that [the Estate] would be permitted to sue
                them again for the same claims more than two years later. Such
                a result would violate the spirit of the res judicata doctrine that
                prevents such conduct. Similarly, were we to rule otherwise in
                circumstances such as those presented here and allow this case to
                proceed, the settlement of claims would be unlikely. That is, a
                case might never be settled until the individual dies.


       Id. at 1004. Consequently, we determined that the matter was, or could have

       been, determined in the prior action and that the estate’s claim was barred by

       res judicata.


[21]   Similarly, here, FATIC’s original claim included a petition for judicial review

       and a declaratory judgment action. The trial court denied FATIC’s “Verified

       Petition for Judicial Review and Declaratory Relief.” Appellant’s App. Vol. I

       p. 142. FATIC then appealed the denial but made no specific argument

       regarding its requested declaratory relief before either this court or our supreme

       court. Our supreme court did not address the request for declaratory relief and

       determined that the trial court erred by failing to grant the Commissioner’s

       motion to dismiss.2 FATIC’s original petition for judicial review and




       2
         FATIC now argues that its request for declaratory relief remained pending because IDOI’s motion to
       dismiss concerned only its request for judicial review. However, FATIC never raised this argument during
       its first appeal process. Further, regardless of whether the trial court is now addressing the initial request for
       declaratory relief or the refiled claim, we conclude that it is barred by res judicata.

       Court of Appeals of Indiana | Opinion 49A05-1512-PL-2309 | December 2, 2016                          Page 13 of 17
       declaratory relief and its current petition for a writ of prohibition and mandate,

       judicial review, and declaratory judgment both addressed the Commissioner’s

       failure to file a timely order. FATIC is merely asserting the same claim that our

       supreme court previously rejected due to FATIC’s failure to file the entire

       agency record.


[22]   Despite this situation’s similarity to Richter, FATIC argues that its current

       declaratory judgment action was proper. FATIC notes that the exhaustion of

       administrative remedies through AOPA may not be appropriate if an agency’s

       action is challenged as being ultra vires and void or otherwise beyond the scope

       of the agency’s authority. Johnson v. Celebration Fireworks, Inc., 829 N.E.2d 979,

       983 (Ind. 2005) (citing Indiana Dep’t of Envtl. Mgmt. v. Twin Eagle LLC, 798

       N.E.2d 839, 844 (Ind. 2003)). FATIC further argues that “[a] void action is

       subject to collateral attack at any time.” Mies v. Steuben Cty. Bd. of Zoning

       Appeals, 970 N.E.2d 251, 258 (Ind. Ct. App. 2012). FATIC contends that the

       Commissioner’s untimely order was beyond statutory authority and void and,

       as such, was subject to collateral attack.


[23]   Twin Eagle and Johnson both discussed an agency’s action challenged as ultra

       vires and void in the context of exhaustion of administrative remedies. Twin

       Eagle was a declaratory judgment action brought by a real estate developer

       against the Indiana Department of Environmental Management challenging

       whether some interim regulations governing wetlands’ development were

       applicable to its project. Although IDEM argued that the developer had failed

       to exhaust its administrative remedies, the trial court addressed the declaratory

       Court of Appeals of Indiana | Opinion 49A05-1512-PL-2309 | December 2, 2016   Page 14 of 17
       judgment action. In this context, our supreme court discussed the exhaustion

       of administrative remedies requirement and noted:


               Even if the ground of the complaint is the unconstitutionality of
               the statute, which may be beyond the agency’s power to resolve,
               exhaustion of administrative remedies may still be required
               because administrative action may resolve the case on other
               grounds without confronting broader legal issues. Ordinarily, an
               administrative agency must resolve factual issues before the trial
               court acquires subject matter jurisdiction. But exhaustion of
               administrative remedies is not required if a statute is void on its
               face, and it may not be appropriate if an agency’s action is
               challenged as being ultra vires and void. More generally, if an
               action is brought upon the theory that the agency lacks the
               jurisdiction to act in a particular area, exhaustion of remedies is
               not required. To the extent the issue turns on statutory
               construction, whether an agency possesses jurisdiction over a
               matter is a question of law for the courts.


       Twin Eagle, 798 N.E.2d at 844. The court concluded that the issues presented

       regarding IDEM’s legislative authority to regulate the waters were pure

       questions of law. However, whether the regulations were applicable to the

       particular waters was a matter for administrative determination.


[24]   Similarly, Johnson involved a seller of fireworks challenging the State Fire

       Marshal’s ability to require certificates of compliance from each of its wholesale

       locations instead of one certificate from its central warehouse. Our supreme

       court determined that exhaustion of administrative remedies was required prior

       to the fireworks seller initiating a complaint against the Fire Marshal. The

       court held:


       Court of Appeals of Indiana | Opinion 49A05-1512-PL-2309 | December 2, 2016   Page 15 of 17
                [T]here is absolutely no question in the present case of the Fire
                Marshal’s legal authority to license fireworks wholesalers; the
                question here is at most a mixed question of law and fact—and,
                quite likely in our view, a pure question of fact—as to whether
                each of the individual outlets selling fireworks is itself a
                wholesaler. The Court of Appeals was incorrect to hold that the
                Fire Marshal’s authority is a question of statutory construction (a
                pure question of law), relieving Celebration from exhausting its
                administrative remedies. We find this to be a question of fact
                properly resolved through the administrative process.


       Johnson, 829 N.E.2d at 983.


[25]   There is no claim here that IDOI lacks jurisdiction or general authority to

       investigate claims like those presented here. Rather, the issue is whether the

       Commissioner’s order was timely. As in Johnson, this type of fact-sensitive

       issue should be resolved in the first instance by the administrative agency, not

       through a declaratory judgment action or action for prohibition and mandate.

       Further, we note that neither Twin Eagle nor Johnson addressed the specific issue

       presented here—whether res judicata prevented FATIC from filing a

       declaratory judgment action and action for prohibition and mandate after

       having received an unfavorable result through the first appeal process.3 FATIC




       3
         FATIC relies on Town of Pittsboro Advisory Plan Com’n v. Ark Park, LLC, 26 N.E.3d 110 (Ind. Ct. App. 2015),
       which we find unpersuasive here. In Ark Park, a developer filed a petition for judicial review and declaratory
       judgment after the town council denied its PUD concept plan application. The developer filed to file a timely
       and complete board record, and the trial court denied the town council’s motion to dismiss and allowed the
       developer additional time to file the record. On appeal, we held that the trial court erred by denying the
       motion to dismiss the petition for judicial review based on the developer’s failure to file a complete and
       timely record. With respect to the declaratory judgment action, the town council argued that a declaratory
       judgment action was improper under these circumstances and that it was merely an attempt to circumvent


       Court of Appeals of Indiana | Opinion 49A05-1512-PL-2309 | December 2, 2016                     Page 16 of 17
       had an administrative remedy here and was required to pursue that remedy.

       Outboard Boating Club of Evansville, Inc. v. Indiana State Dep’t of Health, 952

       N.E.2d 340, 343 (Ind. Ct. App. 2011) (“[W]here an administrative remedy is

       available, filing a declaratory judgment action is not a suitable alternative.”).

       Although its remedy failed due to its failure to file the complete agency record,

       res judicata prevents FATIC from taking a second bite at the apple by filing the

       instant action. We conclude that the trial court properly granted IDOI’s motion

       to dismiss.


                                                     Conclusion
[26]   The trial court properly granted IDOI’s motion to dismiss because FATIC’s

       claims are barred by res judicata. We affirm.


[27]   Affirmed.


       Bailey, J., and Riley, J., concur.




       the judicial review process. We concluded that the developer presented no facts on which the trial court
       could have granted declaratory judgment and that its “specific constitutional challenge was not a proper
       claim for declaratory judgment.” Ark Park, 26 N.E.3d at 122. This action did not concern whether res
       judicata prevented a claimant from filing a declaratory judgment action after being unsuccessful in its first
       petition for judicial review.

       Court of Appeals of Indiana | Opinion 49A05-1512-PL-2309 | December 2, 2016                        Page 17 of 17
