                                                                                        FILED
                                                                                   Oct 27 2017, 10:58 am

                                                                                        CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
                                                                                         and Tax Court




      ATTORNEYS FOR APPELLANT
      Curtis T. Hill, Jr.
      Attorney General of Indiana
      David E. Corey
      Deputy Attorney General
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Indiana Department of                                      October 27, 2017
      Workforce Development,                                     Court of Appeals Case No.
      Appellant-Petitioner,                                      64A05-1703-CC-583
                                                                 Appeal from the Porter Superior
              v.                                                 Court
                                                                 The Honorable Roger V. Bradford,
      Kristofer Hugunin,                                         Judge
      Appellee-Respondent.                                       Trial Court Cause No.
                                                                 64D01-1508-CC-6627



      Pyle, Judge.


                                        Statement of the Case
[1]   In this interlocutory appeal, the Indiana Department of Workforce

      Development (“Workforce Development”) appeals the trial court’s denial of its

      Court of Appeals of Indiana | Opinion 64A05-1703-CC-583 | October 27, 2017                            Page 1 of 9
      motion for summary judgment in its action against Kristofer Hugunin

      (“Hugunin”).1 Concluding that Workforce Development is entitled to

      judgment as a matter of law, we reverse and remand with instructions for the

      trial court to grant Workforce Development’s summary judgment motion.


[2]   We reverse and remand with instructions.


                                                          Issue
               The sole issue for our review is whether trial court erred in
               denying Workforce Development’s summary judgment motion.


                                                         Facts
[3]   In 2009 and 2011, Hugunin applied for and received emergency unemployment

      compensation benefits. However, a subsequent investigation determined that

      Hugunin had received employment income at the same time he was receiving

      unemployment benefits. In May 2013, Workforce Development mailed

      Hugunin investigation case histories and a Determination of Eligibility (“the

      Determination”), which provided in relevant part as follows:


               You claimed benefits during the period 01/03/2009 to
               05/14/2011. An investigation of this claim period was



      1
        Workforce Development refers to Hugunin using his initials. However, this Court has previously
      determined that, notwithstanding the confidentiality mandate of INDIANA CODE § 22–4–19–6 and Indiana
      Administrative Rule 9(G), “it is appropriate for this Court to use the full names of parties in routine appeals
      from the Review Board.” Moore v. Review Bd. of Ind. Dep’t of Workforce Development, 951 N.E.2d 301, 306 (Ind.
      Ct. App. 2011). See also J.M. v. Review Bd. of Ind. Dep’t of Workforce Development, 975 N.E.2d 1283, 1285 n. 1
      (Ind. 2012) (noting that the Court’s practice “going forward will be to keep the[ ] parties confidential only if
      they make an affirmative request”). Because Hugunin did not make such an affirmative request, we will
      utilize his name.

      Court of Appeals of Indiana | Opinion 64A05-1703-CC-583 | October 27, 2017                           Page 2 of 9
              conducted to determine whether or not you failed to disclose or
              misrepresented material facts which, if known, would have
              disqualified you or rendered you ineligible, or would have
              reduced your benefits for the following reasons: employment
              and earnings. . .

              Based on available evidence, it must be concluded that you
              knowingly failed to disclose, or falsified material facts.
              Therefore, the penalties prescribed by Chapter 13, Section 1.1 of
              the Laws of Indiana relating to the Department of Workforce
              Development apply.

              You received benefits to which you were not entitled and which
              you are now liable to repay the Department . . . .

              This determination will become final on 5-31-13 if not appealed.

      (App. 32). The Determination further informed Hugunin how to initiate an

      appeal.


[4]   Hugunin failed to respond to the Determination. Two years later, in August

      2015, Workforce Development filed a verified petition for civil enforcement,

      wherein it asked the trial court to enter an order enforcing the Determination

      and to order Hugunin to pay Workforce Development $20,190.75 plus interest.

      In October 2015, Hugunin filed an answer, affirmative defenses, and a jury

      demand.


[5]   In May 2016, Workforce Development filed a motion for summary judgment.

      In its memorandum in support of its motion, Workforce Development argued

      that pursuant to INDIANA CODE § 22-4-13-1.1(a), Hugunin was required to

      accurately report all earnings while claiming benefits. Workforce

      Development’s designated evidence revealed that Hugunin had failed to report

      Court of Appeals of Indiana | Opinion 64A05-1703-CC-583 | October 27, 2017   Page 3 of 9
      earnings for the claim weeks he worked. He therefore knowingly failed to

      disclose or falsified information regarding earnings that would have made him

      ineligible for unemployment benefits. Workforce Development argued that

      because he failed to properly report his wages, he was required to repay the full

      amount of the benefits received plus penalties. Workforce Development further

      claimed that because Hugunin had failed to appeal the determination within the

      statutorily required ten days, the administrative ruling became final and

      unappealable. Workforce Development argued that the “undisputed facts of

      this case permit[ted] the Court to determine that [Hugunin was] indebted to

      [Workforce Development]” in the amount of $20,685.30. (App. 14).

      According to Workforce Development, the case involved no factual dispute and

      the agency was entitled to judgment as a matter of law.


[6]   In his response, Hugunin admitted that the Determination was sent to his last

      known address. However, he contended that at the time the letter was sent, he

      was incarcerated in the Porter County Jail and had not received it. He

      designated a March 2013 sentencing order in support of his response. His sole

      argument was that Workforce Development had failed to follow Indiana Trial

      Rule 4.3, which requires service of summons upon an incarcerated person to be

      made by delivering or mailing a copy of the summons to the official in charge

      of the institution. Workforce Development replied that Hugunin had

      “conflate[d] service pursuant to the Indiana Rules of Trial Procedure with

      service as provided for within the Indiana Code for administrative findings by

      [Workforce Development].” (App. 48). According to Workforce


      Court of Appeals of Indiana | Opinion 64A05-1703-CC-583 | October 27, 2017   Page 4 of 9
      Development, Hugunin had “failed to cite to the proper Indiana Code

      provisions regarding service for [Workforce Development’s] administrative

      orders; rather, [Hugunin] incorrectly cite[d] to the Indiana Rules of Trial

      Procedure, which do not govern service of administrative orders by [Workforce

      Development].” (App. 49). Workforce Development argued that pursuant to

      INDIANA CODE § 22-4-17-2, it was “required only to send its administrative

      orders to the claimant’s last known address.” (App. 49). Workforce

      Development further pointed out that the determination was not returned to

      Workforce Development as undeliverable when sent to Hugunin’s last known

      address.


[7]   The trial court summarily denied Workforce Development’s summary

      judgment motion without a hearing, and Workforce Development filed a

      motion to certify the matter for interlocutory appeal. The trial court certified

      the matter, and Workforce Development sought this Court’s permission to

      appeal. We granted the request and accepted the interlocutory appeal.


                                                    Decision
[8]   At the outset, we note that Hugunin has failed to file an appellee’s brief. When

      an appellee fails to submit a brief, we need not undertake the burden of

      developing an argument for the appellee. Santana v. Santana, 708 N.E.2d 886,

      887 (Ind. Ct. App. 1999). Applying a less stringent standard of review, we may

      reverse the trial court if the appellant can establish prima facie error. Id.

      However, we may in our discretion decide the case on the merits. Kladis v.


      Court of Appeals of Indiana | Opinion 64A05-1703-CC-583 | October 27, 2017      Page 5 of 9
       Nick’s Patio, Inc., 735 N.E.2d 1216, 1219 (Ind. Ct. App. 2000). We exercise

       such discretion in this case.


[9]    Summary judgment is appropriate where there are no genuine issues of material

       fact and the movant is entitled to judgment as a matter of law. Ind. Trial Rule

       56(C); Knighten v. E. Chi. Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015). The

       movant’s burden is to show that its designated evidence, with all conflicts,

       doubts, and reasonable inferences resolved in the nonmovant’s favor,

       affirmatively negates the nonmovant’s claim. Hughley v. State, 15 N.E.3d 1000,

       1003 (Ind. 2014). The burden then shifts to the nonmovant to show an issue of

       fact affecting the outcome of the case that requires resolution by the fact-finder.

       Id. In the present case, the meaning of a statute is at issue, and because the

       relevant facts are not in dispute, the construction of the statute presents a pure

       question of law for which disposition by summary judgment is appropriate. See

       Indiana Patient’s Compensation Fund v. Anderson, 661 N.E.2d 907, 908 (Ind. Ct.

       App. 1996), trans. denied.


[10]   Workforce Development originally alleged that Hugunin had failed to comply

       with INDIANA CODE § 22-4-13-1.1, which provides as follows:


               Sec. 1.1. (a) Notwithstanding any other provisions of this article,
               if an individual knowingly:

                        (1) fails to disclose amounts earned during any week in the
                        individual’s waiting period, benefit period, or extended
                        benefit period; or
                        (2) fails to disclose or has falsified any fact that would
                        disqualify the individual for benefits, reduce the

       Court of Appeals of Indiana | Opinion 64A05-1703-CC-583 | October 27, 2017     Page 6 of 9
                        individual’s benefits, or render the individual ineligible for
                        benefits or extended benefits, the individual forfeits any
                        wage credits earned or any benefits or extended benefits
                        that might otherwise be payable to the individual for any
                        week in which the failure to disclose or falsification caused
                        benefits to be paid improperly.

               (b) In addition to amounts forfeited under subsection (a), an
               individual is subject to the following civil penalties for each
               instance in which the individual knowingly fails to disclose or
               falsifies any fact that if accurately reported to the department
               would disqualify the individual for benefits, reduce the
               individual's benefits, or render the individual ineligible for
               benefits or extended benefits:

                        (1) For the first instance, an amount equal to twenty-five
                        percent (25%) of the benefit overpayment.

                        (2) For the second instance, an amount equal to fifty
                        percent (50%) of the benefit overpayment.

                        (3) For the third and each subsequent instance, an amount
                        equal to one hundred percent (100%) of the benefit
                        overpayment.

               (c) The department's determination under this section constitutes
               an initial determination under IC 22-4-17-2(a) and is subject to a
               hearing and review under IC 22-4-17-3 through IC 22-4-17-15.

[11]   Workforce Development further argued that it had complied with INDIANA

       CODE § 22-4-17-2, which provides, in relevant part, as follows:


               (e) In cases where the claimant's benefit eligibility or
               disqualification is disputed, the department shall promptly notify
               the claimant and the employer or employers directly involved or
               connected with the issue raised as to the validity of such claim,
               the eligibility of the claimant for waiting period credit or benefits,
               or the imposition of a disqualification period or penalty, or the

       Court of Appeals of Indiana | Opinion 64A05-1703-CC-583 | October 27, 2017        Page 7 of 9
               denial thereof, and of the cause for which the claimant left the
               claimant's work, of such determination and the reasons thereof.

               (f) Except as otherwise hereinafter provided in this section
               regarding parties located in Alaska, Hawaii, and Puerto Rico,
               unless the claimant or such employer, within ten (10) days after
               the notification required by subsection (e), was mailed to the
               claimant's or the employer's last known address or otherwise
               delivered to the claimant or the employer, asks for a hearing
               before an administrative law judge thereon, such decision shall
               be final and benefits shall be paid or denied in accordance
               therewith.

       (Italics added).


[12]   Our review of the undisputed designated facts in this case reveals that, as set

       forth in Workforce Development’s memorandum in support of its summary

       judgment motion, Hugunin failed to report earnings for the claim weeks that he

       worked. Workforce Development notified Hugunin of its findings in a

       Determination of Eligibility and advised him that he was liable to pay the

       benefits to which he was not entitled. The determination, which was sent to

       Hugunin’s last known address, also advised Hugunin that it would become final

       on May 31, 2012 if not appealed, and it set forth the requirements for the

       initiation of an appeal. Hugunin did not appeal the determination. Based upon

       these undisputed facts, Workforce Development complied with the relevant

       statutes and was entitled to judgment as a matter of law on its verified petition

       for civil enforcement. The trial court therefore erred in denying Workforce




       Court of Appeals of Indiana | Opinion 64A05-1703-CC-583 | October 27, 2017   Page 8 of 9
       Development’s summary judgment motion.2 Accordingly, we reverse and

       remand with instructions for the trial court to grant Workforce Development’s

       summary judgment motion.


[13]   Reversed and remanded.


       Riley, J., and Robb, J., concur.




       2
         Although Hugunin has failed to file an appellee’s brief, we note that at the summary judgment stage, he
       argued that he was incarcerated when Workforce Development sent the Determination to his last known
       address. According to Hugunin, Workforce Development had failed to comply with Trial Rule 4.3, which
       required service of summons upon an incarcerated person to be made by delivering or mailing a copy of the
       summons to the official in charge of the institution. Assuming that the Determination was in the nature of a
       summons, both the Indiana Supreme Court and this Court have held in numerous cases that the rules of trial
       procedure “are not applicable to proceedings before the administrative agencies nor to the proceedings
       requisite to invoking the jurisdiction of reviewing judicial authority.” Clary v. Nat’l Friction Prod. Inc., 290
       N.E.2d 53, 55 (Ind. 1972). See also Margrat, Inc. v. Ind. State Bd. of Tax Com’rs, 448 N.E.2d 684, 685 (Ind. Ct.
       App. 1982) and cases cited therein. But see Ball Stores, Inc., v. State Bd. of Tax Com’rs, 316 N.E.2d 674, 677-78
       (Ind. 1974) (determining that where “the statute [governing an appeal from the Industrial Board] is silent as
       to the method of computing the time for filing an appeal and giving notice to the Board[,] Trial Rule 6(A)
       provides the method for computing the thirty day time span when the thirtieth day falls on a Saturday,
       Sunday, or holiday”).

       Court of Appeals of Indiana | Opinion 64A05-1703-CC-583 | October 27, 2017                            Page 9 of 9
