MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                        Jul 25 2019, 9:17 am
regarded as precedent or cited before any
                                                                                 CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
W. Erik Weber                                             Curtis T. Hill, Jr.
Mefford, Weber and Blythe, P.C.                           Attorney General of Indiana
Auburn, Indiana                                           Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lois A. Myers,                                            July 25, 2019
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          19A-MI-8
        v.                                                Appeal from the DeKalb Superior
                                                          Court
Indiana Family and Social                                 The Honorable Monte L. Brown,
Services Administration,                                  Judge
Appellee-Respondent.                                      Trial Court Cause No.
                                                          17D02-1709-MI-72



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-MI-8 | July 25, 2019                           Page 1 of 9
[1]   Lois A. Myers appeals the dismissal of her petition for judicial review. We

      affirm.

                                       Facts and Procedural History

[2]   In April 2017, the Indiana Family and Social Services Administration

      (“FSSA”) notified Myers that it was taking action to revoke her child care home

      license. Myers requested a hearing. On June 28, 2017, an administrative law

      judge (the “ALJ”) conducted a hearing. The ALJ issued a decision which

      included the following findings of fact:

              8. On March 23, 2017, [Annette] Jones conducted a home
              inspection pursuant to [Myers’s] license renewal. Mrs. Jones noted
              an altered CPR card for one staff member, Janet Ridge. The date of
              January 17, 2017 that was altered on the CPR card was the date the
              staff member supposedly took the CPR Training. There were no
              other issues discovered with the child care home during this
              inspection.

              9. On April 17, 2017, DeKalb Health’s American Heart
              Association Training Center Coordinator, Joyce Johnson, verified
              with Mrs. Jones that Janet Ridge did not complete CPR training
              with her on January 17, 2017 as indicated on Ms. Ridge’s CPR
              card.

              10. Ms. Johnson also verified that DeKalb Health had no record of
              Janet Ridge participating in CPR classes since June of 2016.

              11. On April 20, 2017, [Myers] texted Mrs. Jones a picture of the
              front and back of the CPR card in question.

              12. [Myers] admitted on record that she knew the CPR card had
              been altered when she texted it to Mrs. Jones; however, she gave no
              explanation to Mrs. Jones about the altered card.

              13. The original altered CPR card for Ms. Ridge was thrown away
              by [Myers] so it could not be entered as evidence; a photo copy of
              the card is what was used during the hearing.
      Court of Appeals of Indiana | Memorandum Decision 19A-MI-8 | July 25, 2019    Page 2 of 9
               14. [Myers] admits the CPR card for Ms. Ridge was altered;
               however, she is in [sic] the belief that one of her day care children
               altered the card after they damaged the card while playing.

               15. The altered CPR card did not appear to have any damage that
               was noticeable in the copy.

               16. [Myers] admitted she knew she and her staff members needed
               to complete their training/certifications annually; however, she did
               not believe that meant one year from the exact date on their
               certifications.

               17. [Myers] provided Mrs. Jones with a Certificate of Heartsaver
               Pediatric First Aid CPR AED Online Portion for Ms. Ridge dated
               April 24, 2017.

      Appellant’s Appendix Volume 2 at 34-35. The ALJ concluded that FSSA had

      sufficient grounds for revocation of Myers’s license under Ind. Code § 12-17.2-

      5-32, 1 as “it is undisputed an altered CPR card with a false date concerning a

      child care staff member’s training date was provided to the State agency,” and

      “[t]his false statement is[] sufficient to support a revocation of a child care home

      license.” Id. at 38. FSSA issued a notice of final agency action affirming the

      ALJ’s decision.


[3]   On September 20, 2017, Myers filed a verified petition for judicial review. On

      October 4, 2017, Myers filed a Motion to Extend Deadline to Submit Record

      stating that the record may in fact not be prepared within thirty days of the

      filing of the case and requesting that the time to file the record of proceedings in




      1
        Ind. Code § 12-17.2-5-32 provides in part: “The following constitute sufficient grounds for revocation of a
      license: . . . (4) A determination by the division that the licensee made false statements in the records
      required by the division.”

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-8 | July 25, 2019                          Page 3 of 9
      the matter be extended to thirty days after notice of completion by FSSA. On

      October 5, 2017, the court issued an order extending the deadline to file the

      record of proceedings to thirty days after the record was completed by FSSA. A

      letter from FSSA to Myers’s counsel dated December 20, 2017, indicated that it

      was sent by certified mail and stated that a copy of the hearing record had been

      prepared and was enclosed. On February 7, 2018, Myers filed a brief in support

      of her petition for judicial review and a document containing the agency record.


[4]   On March 15, 2018, FSSA filed a motion to dismiss Myers’s petition for

      judicial review on the grounds that she failed to timely file the agency record. It

      filed a memorandum arguing the filing deadline was January 23, 2018, Myers

      failed to file the agency record by the deadline and instead elected to file it as an

      exhibit to the brief she submitted on February 7, 2018, and the filing

      requirement of the Indiana Administrative Orders and Procedures Act (the

      “AOPA”) cannot be waived. On April 16, 2018, Myers filed a response

      arguing that the court had not entered a specific order regarding the deadline for

      filing the agency record, that the record was provided to her counsel in the mail

      at some point in late 2017 or early 2018, that no record in the chronological

      case summary states that a notice of completion had been filed by FSSA, and

      that she did electronically file the agency transcript separately from her brief.

      On June 4, 2018, FSSA filed a notice of supplemental evidence in support of its

      motion to dismiss stating that it had mailed Myers a copy of the agency record

      via certified mail on December 20, 2017; that a receptionist and legal assistant

      to Myers’s counsel signed the return receipt certifying receipt of the record; that


      Court of Appeals of Indiana | Memorandum Decision 19A-MI-8 | July 25, 2019   Page 4 of 9
      the return receipt arrived back at FSSA on December 28, 2017; and that,

      therefore, Myers received the agency record sometime between December 20th

      and December 28, 2017. An exhibit attached to the notice contained a copy of

      a signed return receipt and a stamped date of December 28, 2017.


[5]   On July 2, 2018, the trial court issued an order which found that, “between the

      date of December 20, 2017, and not later than December 28, 2017, the FSSA

      prepared the subject agency record and delivered the same to counsel for

      [Myers]”; Myers “filed a copy of the agency record as an exhibit to [her] Brief

      filed with the Court on February 7, 2018”; the agency record “had to be filed

      not later than January 27, 2018, and no extension of time was filed”; and that

      Myers failed to satisfy the AOPA requirement, a condition precedent for its

      ability to hear or take action on her petition. Id. at 22-23. The court granted

      FSSA’s motion to dismiss Myers’s petition for judicial review. Myers filed a

      motion to correct error, which the court denied.

                                                   Discussion

[6]   Myers claims the trial court erred in dismissing her petition for judicial review

      and argues that “factual issues are not necessarily in debate in this matter and

      that there is enough information contained in the original filing to consider the

      important legal question without review of the entire record of the

      administrative agency.” Appellant’s Brief at 9. She argues:

              The card that was the subject matter of the FSSA’s decision does
              not represent a statement. . . . Even if it was made-up false, and not
              accurate, how do we know the origination of the document? It is
              not a document of Lois A. Myers. How do we define a false
      Court of Appeals of Indiana | Memorandum Decision 19A-MI-8 | July 25, 2019       Page 5 of 9
              statement? A statement is something that someone says or writes
              officially by the accounts of most common dictionaries. A
              statement is not a possession.

      Id. at 9-10. She argues the issues are substantially legal ones and the record

      provided with the petition was sufficient. FSSA maintains the court properly

      dismissed Myers’s petition because she did not timely file the agency record. It

      argues this case relates to a falsified CPR card, the facts about the card are in

      dispute and confusing, and the agency record was necessary for the trial court

      to resolve the factual discrepancies.


[7]   The AOPA provides the exclusive means for judicial review of a final agency

      action. Ind. Family & Soc. Servs. Admin. v. Meyer, 927 N.E.2d 367, 370 (Ind.

      2010) (citing Ind. Code § 4-21.5-5-1). Ind. Code § 4-21.5-5-5 requires that the

      aggrieved petitioner file a petition with the trial court within thirty days of

      service of the final agency action. Id. Ind. Code § 4-21.5-5-13 addresses the

      requirement to file the agency record and provides in 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. . . . 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.

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-8 | July 25, 2019        Page 6 of 9
[8]   “The statute places on the petitioner the responsibility to file the agency record

      timely.” Meyer, 927 N.E.2d at 370. “Although the statute allows a petitioner to

      seek extensions of time from the trial court, and requires that extensions be

      granted if the petitioner demonstrates ‘good cause’ for a delay in filing the

      record, the statute does not excuse untimely filing or allow nunc pro tunc

      extensions.” Id. “In short, the statute acknowledges possible difficulties in

      preparing and submitting the agency record, but places the burden on the

      petitioner to file or seek an extension within the statutory period or any

      extension.” Id. at 371.


[9]   In Teaching Our Posterity Success, Inc. v. Ind. Dep’t of Educ. (“TOPS”), the Indiana

      Supreme Court held:

                 All four justices[2] in Meyer agreed that the trial court lacked
                 authority to extend the filing deadline for an agency record that was
                 not filed within the required statutory period or an authorized
                 extension thereof. We reasoned:

                          The purpose of AOPA section 13 is to ensure that the review
                          of agency action proceeds in an efficient and speedy manner,
                          and that the reviewing trial court has access to the record
                          before rendering its decision. . . . The filing requirement also
                          ensures that no relevant evidence or materials are hidden,
                          and no “new” or “secret” evidence is introduced to either
                          contradict or support an agency decision.

                 Meyer, 927 N.E.2d at 370 (internal quotation and citation omitted).
                 This reasoning applies with equal force to a requirement that the
                 official agency record must be filed with the trial court in order for



      2
          Justice Sullivan did not participate in Meyer.

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-8 | July 25, 2019             Page 7 of 9
               judicial review to proceed. In sum we hold a petitioner for review
               cannot receive consideration of its petition where the statutorily-
               defined agency record has not been filed. In our view this bright-
               line approach best serves the goals of accuracy, efficiency, and
               judicial economy. Here because [the petitioner] did not file the
               agency record as anticipated by AOPA, the trial court properly
               dismissed its petition for judicial review.

       20 N.E.3d 149, 155 (Ind. 2014) (footnote omitted). See also First Am. Title Ins.

       Co. v. Robertson, 19 N.E.3d 757, 763 (Ind. 2014) (citing TOPS and holding, “[i]n

       this case [the petitioner] did not file the agency record with the trial court,”

       “[t]herefore its petition for judicial review cannot be considered,” and “[t]he

       trial court thus erred in failing to grant the . . . motion to dismiss the petition”),

       amended on reh’g, 27 N.E.3d 768 (Ind. 2015); Carmel Bd. of Zoning Appeals v.

       Bidgood, 120 N.E.3d 1045, 1050 (Ind. Ct. App. 2019) (observing that the

       Indiana Supreme Court “clearly established in an AOPA case a bright-line

       approach to the filing of an agency record,” citing TOPS and Robertson); Allen

       Cty. Plan Comm’n v. Olde Canal Place Ass’n, 61 N.E.3d 1266, 1269-1270 (Ind. Ct.

       App. 2016) (recognizing the “bright-line rule” set forth in TOPS and Robertson

       that dismissal is mandatory when the agency record is not timely filed).


[10]   Here, the trial court found that the agency record was delivered to Myers’s

       counsel “between the date of December 20, 2017, and not later than December

       28, 2017,” that the agency record was required to be filed no later than January

       27, 2018, that no extension of time was filed, and that Myers did not file the

       agency record until February 7, 2018. Appellant’s Appendix Volume 2 at 22.

       There is support for the trial court’s findings. The court’s October 5, 2017 order


       Court of Appeals of Indiana | Memorandum Decision 19A-MI-8 | July 25, 2019    Page 8 of 9
       provided that the deadline for filing the agency record was thirty days after the

       record was completed by FSSA. Myers does not point to the record to show

       the court entered any further extension. The record contains a letter to Myers’s

       counsel dated December 20, 2017, indicating that a copy of the hearing record

       was enclosed. FSSA submitted a supplemental notice indicating that it had

       mailed a copy of the agency record to Myers on December 20, 2017, and that

       the return receipt had arrived back at FSSA on December 28, 2017. The date

       thirty days after December 28, 2017, is January 27, 2018. Myers filed a

       document containing the agency record with the trial court on February 7,

       2018. Myers has not shown that she met her burden of filing the agency record

       within the statutory period or an extension as contemplated by the AOPA. 3


[11]   For the foregoing reasons, we affirm the dismissal of Myers’s petition for

       judicial review.


[12]   Affirmed.


       May, J., and Mathias, J., concur.




       3
         In TOPS, the Indiana Supreme Court noted that, in Meyer, it had been evenly divided as to whether a
       petitioner’s imperfect compliance with transmitting the agency record is always fatal. See TOPS, 20 N.E.3d
       at 153 (citing Meyer, 927 N.E.2d at 371-372). The Court then observed that, in Meyer, the contested issue was
       the existence of what was essentially an arithmetic error and, most importantly, that the State had conceded
       its error on the contested issue before it moved to dismiss for lack of a record, and the Court held that, “[s]o
       to the extent Meyer represents the possibility of an exception to the filing requirement . . . , any such exception
       is extremely narrow.” Id. at 153-154. In this case, the alleged agency error is more than merely an arithmetic
       error, the agency has not conceded any error, and we cannot say that Myers has established that under these
       circumstances the agency record is unnecessary to the issues presented on judicial review or that her petition
       falls into any “extremely narrow” exception to the general bright-line rule. See id.

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-8 | July 25, 2019                             Page 9 of 9
