FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

MATTHEW M. PRICE                               GREGORY F. ZOELLER
SHANNON D. LANDRETH                            Attorney General of Indiana
Bingham Greenbaum Doll, LLP
Indianapolis, Indiana                          ELIZABETH ROGERS
                                               Deputy Attorney General
                                               Indianapolis, Indiana

                                                                         Apr 26 2013, 8:24 am

                             IN THE
                   COURT OF APPEALS OF INDIANA

LEBAMOFF ENTERPRISES, INC.,                    )
                                               )
      Appellant-Petitioner,                    )
                                               )
             vs.                               )      No. 49A02-1210-MI-826
                                               )
INDIANA ALCOHOL & TOBACCO                      )
COMMISSION,                                    )
                                               )
      Appellee-Respondent,                     )


                   APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable John F. Hanley, Judge
                      The Honorable Christopher Haile, Magistrate
                           Cause No. 49D11-1202-MI-8272




                                     April 26, 2013



                              OPINION - FOR PUBLICATION



ROBB, Chief Judge
                                 Case Summary and Issues

      Lebamoff Enterprises, Inc. (“Lebamoff”), appeals the trial court’s dismissal of its

petition for judicial review. Lebamoff raises three restated issues for our review: 1)

whether the trial court erred in dismissing Lebamoff’s petition for failure to file the

agency record in a timely fashion; 2) whether, excluding the agency record, Lebamoff

submitted sufficient materials for judicial review; and 3) whether deficiencies in the

administrative law judge’s (“ALJ”) findings of fact require that the case be remanded.

Concluding that Lebamoff did fail to timely file the agency record, but that the original

submission contained sufficient material to enable judicial review, we reverse and

remand.

                              Facts and Procedural History

      Lebamoff is an Indiana corporation that operates liquor stores in northern Indiana

and holds a liquor dealer permit, the scope of which is detailed at Indiana Code section

7.1-3-10-7. Beginning in 2008, the Indiana Alcohol and Tobacco Commission (“ATC”)

issued six citations to Lebamoff alleging violations of its permit, stemming from

Lebamoff’s use of common carriers to transport product to customers for sales generated

through fulfillment companies.

      Lebamoff appealed the citations. Following a hearing in November 2011, the ALJ

issued findings of fact and conclusions of law on January 18, 2012, concluding that

Lebamoff had violated the statute by using common carriers. The ALJ recommended

that Lebamoff be fined one thousand dollars for each violation and that Lebamoff’s

permit be suspended for sixty days, with the suspension to be deferred for one year on the

condition that all fines were paid and Lebamoff did not accrue any further violations
                                            2
during the deferral period. The ATC approved the recommendations and issued its final

order on February 7, 2012.

       On February 29, 2012, Lebamoff filed a petition for judicial review, appealing the

ATC’s final order. On March 28, 2012, the ATC filed its answer, and on April 10, 2012,

the ATC filed a motion to dismiss for failure to file an agency record. On May 17, 2012,

Lebamoff received and filed the certified agency record. On June 29, 2012, the trial court

held a hearing on the motion to dismiss. On September 20, 2012, the trial court granted

the ATC’s motion to dismiss. This appeal followed. Additional facts will be provided as

necessary.

                                 Discussion and Decision

                                  I. Standard of Review

       Judicial review of administrative decisions is governed by the Administrative

Orders and Procedures Act (“AOPA”). Ind. Code § 4-21.5-2-0.1. The standard of

appellate review for motions to dismiss depends on whether the trial court resolved

disputed facts, and if so, whether there was an evidentiary hearing. Wayne Cnty. Prop.

Tax Assessment Bd. of Appeals v. United Ancient Order of Druids-Grove No. 29, 847

N.E.2d 924, 926 (Ind. 2006). Where, as here, the trial court ruled on a paper record, we

review the motion to dismiss de novo. Id.

                             II. Submission of Agency Record

       The issue here revolves around Lebamoff’s failure to, within thirty days of filing

its petition for review, either file the agency record or file a motion for extension of time

in which to file the record. The AOPA requires that “[w]ithin thirty (30) days after the

filing of the petition, or within further time allowed by the court or by other law, the
                                             3
petitioner shall transmit to the court the original or a certified copy of the agency record

for judicial review of the agency action . . . .” Ind. Code § 4-21.5-5-13(a). A petitioner

can request an extension of time in which to file the agency record, but that request must

be made within the initial thirty day window, and nunc pro tunc extensions are not

allowed. Ind. Family & Soc. Servs. Admin. v. Meyer, 927 N.E.2d 367, 370-71 (Ind.

2010). The AOPA further provides that extensions of time shall be granted where good

cause is shown, and that an “[i]nability to obtain the record from the responsible agency

within the time permitted by this section is good cause.” Ind. Code § 4-21.5-5-13(b).

The ATC concedes that, had Lebamoff filed for an extension of time, the court would

have granted it, because the agency record was not made available to Lebamoff until

nearly three months after Lebamoff’s petition was filed.

       However, no extension of time was granted by the court because Lebamoff never

officially requested one. Lebamoff contends that while it did not file a motion for

extension of time, it followed the spirit of the statute by including in its petition a

statement that it would, to comply with Indiana Code section 4-21.5-5-13, transmit the

agency record within thirty days after having received notification that the ATC had

prepared the record. Lebamoff notes that the ATC did not object to this proposal in its

answer. Lebamoff argues that its inclusion of this proposal within the petition, rather

than as a separate motion, advances judicial efficiency by obviating the need to file serial

extensions of time while waiting for the record to be prepared, and therefore that

dismissal of its petition raises form above function. Lebamoff further argues that there is

a “clear intent for automatic extensions when a petitioner does not even have the

administrative record to file.” Reply Brief of Appellant at 5.
                                             4
        We disagree that the legislature’s intention was to permit automatic extensions.

The clear language of the statute provides that an extension must be granted by the court

or other law in order for a petitioner to transmit the agency record more than thirty days

after filing a petition. Ind. Code § 4-21.5-5-13. Had the legislature intended to grant

automatic extensions where the agency has delayed in preparing the record, or to have

transmission of the record be due based on the date that the record was prepared by the

agency, rather than the filing date of the petition, it could have done so. See Ind. Tax

Court Rule 3(E) (allowing transmission of the agency record within thirty days after

petitioner receives notice that the record has been prepared); see also Ind. Pub. Emp. Ret.

Fund v. Bryson, 977 N.E.2d 374, 377 (Ind. Ct. App. 2012) (“Where the language of the

statute is clear and unambiguous, there is nothing to construe.”), aff’d on reh’g, 983

N.E.2d 172 (Ind. Ct. App. 2012). Requiring a petitioner to request and be granted an

extension leaves it in the court’s hand to determine whether good cause has been shown.

        As for judicial efficiency, we agree that minimizing superfluous motions is

generally desirable. However, we do not agree that filing for an extension in this case

would necessarily have been inefficient. In fact, in light of the proceedings that have

ensued—which could have been avoided if Lebamoff had filed for an extension—it

seems that the opposite is true. Viewed narrowly, we understand Lebamoff’s argument

that requesting an extension here could be seen as wasteful, when a submission timeline

was proposed in the petition and when any extension request would have been granted for

good cause based on the ATC’s delay in preparing the record.1 However, taking a larger


        1
            Lebamoff’s petition in part cites to Wayne Cnty, 847 N.E.2d 924, for the proposition that serial
extensions create additional work and cost for the court and parties. However, that case involved Indiana Tax Court
Rule 3(E), which fell under the “allowed . . . by other law” exception within the AOPA, and allows petitioners in tax
                                                         5
view, the more efficient tactic is to simply request an extension. Doing so provides a

record for the court and all parties as to what has been requested, what has been granted,

and what deadlines have been set. Under Lebamoff’s scheme of including a proposal in

the petition, rather than filing for an extension, the court and parties must read through

the entire petition and other filings to see whether an extension has been “requested,”

then look to see whether the other party has objected to it in some way, and if it has not,

then to apparently assume that an indefinite extension has been “granted” by the court. It

is neither efficient nor fair to require the court and other parties to sift through the petition

and other filings and guess at how they might be substituting for various other requests

and motions. Lebamoff did not file the agency record within thirty days, nor did it

request an extension of time. Failure to do so was an acceptable basis for dismissal of the

case. See Ind. Code § 4-21.5-5-13(b).

        We note here that we are unimpressed with the ATC’s delay in preparing the

record, followed by a motion to dismiss the case for Lebamoff’s failure to timely file that

same record. The ATC acknowledges that Lebamoff included a proposed timeline for

submission in its petition, and both parties agree that Lebamoff would have been granted

an extension for filing the record if one had been requested.                       It seems harsh and

unnecessary for the ATC to use a procedural requirement this way, when the deadline

only came into play because of the ATC’s delay in preparing the record. While, as

outlined above, the filing of a request for extension plays a valuable role in the larger

context and moreover is required by the statute, the ATC was hardly being harmed by a



court to do just what Lebamoff tried to do here. Ind. Code § 4-21.5-5-13(a); Wayne Cnty, 847 N.E.2d at 928. It
was not within Lebamoff’s power to apply that rule to its case, which was not before the tax court.
                                                      6
delay in filing the record where the ATC itself was the cause of that delay. We believe

the onus was on Lebamoff to file an extension, but the actions of the ATC here are of the

sort that would begin to lend support to concerns that the AOPA could in some cases be a

“trap” for unwary litigants. See Mosco v. Ind. Dep’t of Child Servs., 916 N.E.2d 731,

735 (Ind. Ct. App. 2009), trans. denied.

                         III. Sufficiency of Original Submission

       Despite the fact that dismissal was possible due to Lebamoff’s failure to timely

file the record or request an extension of time, our review is de novo, and dismissal was

not mandatory. See Reedus v. Ind. Dep’t of Workforce Dev., 900 N.E.2d 481, 487 (Ind.

Ct. App. 2009) (concluding that in drafting the AOPA the legislature intended to

“empower, but not require, a trial court to dismiss an appeal” when a petitioner failed to

strictly comply with Indiana Code section 4-21.5-5-13) (emphasis in original).            If

extensions of time may not be granted if not requested within the initial thirty-day

window, and nunc pro tunc extensions are not allowed, but dismissal is not required

where a petitioner fails to timely file the record or request an extension, then there must

be some—likely limited—ways in which a case can move forward even without a timely

record being filed. One way perhaps would be to accept a belated record even where an

official extension has not been granted. In our own court of appeals, briefs and records

are sometimes accepted late even without an express grant of extension, because the

filing of briefs and records is not jurisdictional, unlike the filing of a notice of appeal.

Additionally, “Indiana law strongly prefers disposition of cases on their merits.” Coslett

v. Weddle Bros. Constr. Co., Inc., 798 N.E.2d 859, 861 (Ind. 2003). As with records


                                             7
filed in appeals to our court, our supreme court has held that the filing of the record in an

administrative review case is not jurisdictional. Wayne Cnty., 847 N.E.2d at 926.

         We recognize that our supreme court was recently evenly divided on the issue of

whether a trial court may proceed with a case where the agency record was not timely

filed, but the submitted materials contained sufficient facts on which a determination

could be made.2 Meyer, 927 N.E.2d 367. Indiana Code section 4-21.5-5-13(a) provides

an overview of the document types that should be included in the agency record that the

petitioner files with the reviewing court, including “any other material” described in that

article for the type of action at issue. Indiana Code section 4-21.5-3-33 details some of

the specific documents of which the agency record should consist. While generally,

submitting only selected documents is insufficient to comply with the requirements of the

AOPA, we have acknowledged in the past that providing less than all of the listed

documents may nonetheless be sufficient for judicial review, depending on the particular

case at hand. See Meyer, 927 N.E.2d at 371 (citing cases).

         In Meyer, the appealed issue was a question of fact revolving around the valuation

of some property. In that case, the agency admitted to error in its answer. Two of the

participating justices determined that, in light of the agency’s admission, the submitted

documents were sufficient for review even without the full agency record. Id. at 372.

The other two participating justices disagreed, arguing that an agency record is required

for judicial review, and that holding otherwise would lead to future contests over whether

a submitted record is “complete enough” for review. Id. at 374. Further, the disagreeing


         2
          Justice Sullivan did not participate in the decision, and the remaining four justices were evenly split on
the outcome of this issue.
                                                          8
justices noted that in that particular case, if the court dismissed the case, the case would

nonetheless be reviewed by a Medicare county office and thus that the petitioner would

“receive all the further consideration to which the Court says she is entitled.” Id. It is not

clear to what extent that fact influenced the decision of the disagreeing justices, and

whether they would have held differently had their decision been the end of the line for

that petitioner.

       This case is somewhat different from Meyer, in that the question at issue here—

whether Lebamoff’s use of common carriers complies with the requirements of the

statute—is a pure question of law. To the extent that any facts were necessary, they were

included in the sparse findings of fact and conclusions of law written by the ALJ, which

were submitted by Lebamoff with its petition; for example, the findings of fact noted that

Lebamoff held a liquor permit, and the statutory section under which that permit was

held. Because the question here is a question of law regarding the interpretation of the

statute as it concerns use of common carriers, and there were no disputed facts, the

limited findings of the ALJ were sufficient to allow judicial review of the issue, even in

the absence of the agency record.

        The ATC argues that Lebamoff’s submission was insufficient without the agency

record, but points to nothing in the record that would be required for review. The ATC

mentions transcripts of the ALJ hearing and copies of excise police citations, but does not

indicate how these documents would have aided judicial review on a question of law.

We agree that the best practice is to timely file the entire agency record regardless of the

nature of the case. However, here, the record simply was not necessary for review, and

the submitted materials are sufficient to permit review of the case on the merits. Failure
                                              9
to timely file the record is “cause for dismissal” under Indiana Code section 4-21.5-5-13,

but cause for dismissal does not mean that the case must be dismissed, especially where,

as here, the record was not required for a ruling. For that reason, we reverse and remand

the case for resolution on the merits.

                                 IV. ALJ’s Findings of Fact

       Lebamoff finally argues that the dearth of facts in the ALJ’s findings of fact and

conclusions of law render the order so deficient that this case should be remanded back to

the ATC to address those deficiencies. Were this a case that required facts for its

resolution, we would likely be inclined to agree with Lebamoff, as deficient findings of

fact can render the matter unreviewable by a court, and the ALJ’s findings here were

severely limited. See Pack v. Ind. Family & Soc. Servs. Admin., 935 N.E.2d 1218, 1227-

28 (Ind. Ct. App. 2010) aff’d on reh’g, 940 N.E.2d 369 (Ind. Ct. App. 2011). Given our

resolution of the record issue above, we conclude here that the limited facts included in

the order are sufficient for the question of law at hand, and do not render the order

impermissibly deficient.

                                          Conclusion

       Concluding that Lebamoff did not meet the timing requirements of the AOPA with

regard to filing of the agency record, but that the materials submitted with the petition

were sufficient for judicial review of the question of law at issue, we reverse and remand

to the trial court for resolution of the issue on the merits.

       Reversed and remanded.

VAIDIK, J., concurs.

KIRSCH, J., dissents with opinion.
                                               10
                                IN THE
                      COURT OF APPEALS OF INDIANA

LEBAMOFF ENTERPRISES,                                )
                                                     )
       Appellant-Petitioner,                         )
                                                     )
                vs.                                  )       No. 49A02-1210-MI-826
                                                     )
INDIANA ALCOHOL & TOBACCO                            )
COMMISSION,                                          )
                                                     )
       Appellee-Respondent.                          )


KIRSCH, Judge, dissenting.

       I respectfully dissent.

       The Administrative Orders and Procedures Act as adopted by our General Assembly is

the exclusive means for judicial review of an administrative action. Ind. Code § 4-21.5-5-1. It

provides that

       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.

Ind. Code § 4-21.5-5-13(a) (emphasis added).

       In the event that the agency record cannot be filed within the allotted thirty-day time

period, the Act provides that “[a]n extension of time in which to file the record shall be granted

by the court for good cause shown. Ind. Code § 4-21.5-5-13(a) (emphasis added). Specifically

included within “good cause” sufficient to secure an extension of time is the “[i]nability to

obtain the record from the responsible agency within the time permitted by this section is good

cause.” Id.


                                                11
       Finally, the Act states that failure to file the record within the time permitted by this

subsection, including any extension period ordered by the court, is cause for dismissal. Id.

       The mandates of the Administrative Orders and Procedures Act as adopted by our

General Assembly are clear. The Appellant simply failed to follow them. It failed to file the

agency record within the time period set forth in the Act, and it failed to seek an extension of that

time. That failure was cause for dismissal, and accordingly, I would affirm the trial court’s

dismissal.




                                                 12
