MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                        FILED
court except for the purpose of establishing
                                                                            Apr 25 2018, 9:43 am
the defense of res judicata, collateral
estoppel, or the law of the case.                                                CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                       J. Kirk LeBlanc
Attorney General of Indiana                               LeBlanc Nettles Davis
                                                          Brownsburg, Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Commissioner, Indiana                                     April 25, 2018
Department of Insurance,                                  Court of Appeals Case No.
Appellant-Respondent,                                     32A05-1712-PL-2996
                                                          Appeal from the Hendricks
        v.                                                Superior Court
                                                          The Honorable Rhett M. Stuard,
Donald L. Emry,                                           Judge
Appellee-Petitioner.                                      Trial Court Cause No.
                                                          32D02-1703-PL-29



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A05-1712-PL-2996 | April 25, 2018                Page 1 of 6
                                           Case Summary
[1]   On September 20, 2016, the Commissioner for the Indiana Department of

      Insurance (“the Commissioner”) determined that Donald Emry’s insurance

      producer’s license (“license”) should be suspended after Emry demonstrated

      untrustworthiness and inappropriate behavior toward Indiana Department of

      Insurance (“the Department”) staff. An administrative law judge (“ALJ”)

      upheld the Commissioner’s decision on December 16, 2017. Emry sought

      judicial review by the trial court. Following a hearing, the trial court found that

      the evidence was insufficient to sustain the agency’s decision. The

      Commissioner appealed the trial court’s decision. Because we conclude that

      the evidence was sufficient to sustain the agency’s decision, we reverse the

      decision of the trial court and reinstate the suspension of Emry’s license.



                            Facts and Procedural History
[2]   On July 25, 2016, Emry visited the Department to pay the fees required for the

      renewal of his license. Department employee Megan Canfield assisted Emry

      with the renewal of his license. After Canfield accepted Emry’s payment, he

      “seemed to get upset” when she asked if he had completed the required

      continuing education. Appellant’s App. Vol. II, p. 132. Emry hit Canfield

      twice on the left arm with his right hand. Afterward, Canfield asked co-worker

      Laurie Shook to accompany her as she spoke with Emry because she did not

      want to be alone with him. Shook observed that Emry had seemed angry and

      upset during his interaction with Canfield.

      Court of Appeals of Indiana | Memorandum Decision 32A05-1712-PL-2996 | April 25, 2018   Page 2 of 6
[3]   Canfield reported the altercation to Charles Herndon, the director of insurance

      fraud investigations and head of security for the Department. Herndon

      reviewed security video of Canfield’s interactions with Emry and, while he

      could not see Emry strike Canfield when he reviewed the video because of the

      placement of the camera, he did observe Emry’s hand move twice in a manner

      consistent with Canfield’s allegations.


[4]   On July 26, 2016, the Commissioner issued an emergency order in which it

      found that Emry had “struck Canfield in the arm twice” and concluded that

      “[s]triking a Department employee demonstrates untrustworthiness and

      inappropriate behavior toward Department staff, such that a suspension of

      Emry’s license is appropriate.” Appellant’s App. Vol. II, pp. 24, 25. As a

      result, he determined that Emry’s license should be “immediately suspended for

      ninety (90) days” and “[a] hearing shall be held within ninety (90) days to

      determine whether Emry’s [license] should be permanently revoked.”

      Appellant’s App. Vol. II, p. 25.


[5]   An administrative hearing was conducted on August 10, 2016, after which the

      ALJ issued an order finding that Emry’s license should be suspended. On

      September 20, 2016, the Commissioner entered a final order that upheld the

      emergency order and continued the suspension of Emry’s license.


[6]   A second administrative hearing was conducted on November 16, 2016. The

      ALJ issued an order on December 16, 2016, in which it found that




      Court of Appeals of Indiana | Memorandum Decision 32A05-1712-PL-2996 | April 25, 2018   Page 3 of 6
              Emry struck [Canfield] twice on her forearm causing pain, fear
              and apprehension. The lobby video footage was primarily
              blocked from view by [Canfield’s] body; however, it appeared
              that [Emry’s] right hand and forearm moved in a motion that
              could be interpreted as a hand strike as described by [Canfield].


      Appellant’s App. Vol. II, p. 35. The ALJ recommended that (1) Emry’s license

      be suspended for two years and (2) Emry “should be fined in an amount that

      the [Commissioner] would find appropriate under the circumstances.”

      Appellant’s App. Vol. II, p. 37. The Commissioner entered a final order on

      February 1, 2017, in which it suspended Emry’s license “for a period of two (2)

      years from the date of the Emergency Order, July 26, 2016[,]” and ordered that

      Emry “may reapply after the elapse of the (2) year suspension if [he] has

      successfully completed a Department approved anger management course.”

      Appellant’s App. Vol. II, p. 21.


[7]   On March 2, 2017, Emry filed a petition for judicial review. Following a

      hearing, the trial court found that the evidence was insufficient to sustain the

      agency’s decision. The trial court overturned the suspension and ordered that

      Emry’s license be reinstated.



                                 Discussion and Decision
[8]   The Commissioner contends that the trial court erred in reversing the agency’s

      decision. “When reviewing the decision of an administrative agency, we are

      bound by the same standard of review as the trial court.” Andrianova v. Ind.

      Family & Soc. Servs. Admin., 799 N.E.2d 5, 7 (Ind. Ct. App. 2003).

      Court of Appeals of Indiana | Memorandum Decision 32A05-1712-PL-2996 | April 25, 2018   Page 4 of 6
               We will reverse an administrative decision only if it is (1)
               arbitrary, capricious, an abuse of discretion, or otherwise not in
               accordance with law; (2) contrary to a constitutional right,
               power, privilege, or immunity; (3) in excess of statutory
               jurisdiction, authority, or limitations, or short of statutory right;
               (4) without observance of procedure required by law; or (5)
               unsupported by substantial evidence.


       Id. (internal citation and quotations omitted).


[9]    “When reviewing an administrative agency’s decision, the trial court may not

       try the facts de novo or supplant the agency’s judgment with its own.” Id.

       “Neither the trial court nor this court may reweigh the evidence or reassess

       witness credibility.” Id. “Rather, reviewing courts must accept the facts as

       found by the agency factfinder.” Id. at 7–8. “The party seeking judicial review

       bears the burden of demonstrating that the agency’s action is invalid.” Id. at 8.


[10]   The facts most favorable to the agency’s decision are sufficient to sustain the

       decision. Canfield testified that Emry struck her twice on the arm. Shook

       observed that Emry seemed angry and upset. Upon reviewing video of the

       Canfield’s interaction with Emry, Herndon observed Emry’s hand move twice

       in a manner consistent with Canfield’s allegations. Specifically, Herndon

       observed Emry’s “hand come up and go down sharply and then his hand

       c[o]me across his chest and down a second time.” Appellant’s App. Vol. II, p.

       189.


[11]   In requesting judicial review by the trial court, Emry effectively asked the trial

       court to reweigh the evidence, which neither we nor the trial court may do. See

       Court of Appeals of Indiana | Memorandum Decision 32A05-1712-PL-2996 | April 25, 2018   Page 5 of 6
       Andrianova, 799 N.E.2d at 8. Upon review, we conclude that the evidence most

       favorable to the agency’s decision is sufficient to sustain its action. Emry,

       therefore, has failed to prove that the agency’s action was invalid.


[12]   The judgment of the trial court is reversed and the suspension of Emry’s license

       is reinstated.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A05-1712-PL-2996 | April 25, 2018   Page 6 of 6
