      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                          FILED
      regarded as precedent or cited before any                                  Jul 09 2019, 5:38 am
      court except for the purpose of establishing                                   CLERK
      the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                                    Court of Appeals
      estoppel, or the law of the case.                                               and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Curtis T. Hill, Jr.                                       Mark C. Webb
      Attorney General of Indiana                               Tyler D. Helmond
                                                                Voyles Vaiana Lukemeyer Baldwin
      Natalie F. Weiss                                          & Webb
      Deputy Attorney General                                   Indianapolis, Indiana
      Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Indiana Alcohol and Tobacco                               July 9, 2019
      Commission,                                               Court of Appeals Case No.
      Appellant-Respondent,                                     18A-MI-2522
                                                                Appeal from the Marion Superior
              v.                                                Court
                                                                The Honorable Tim Oakes, Judge
      PNC Bancorp, LLC,                                         Trial Court Cause No.
      Appellee-Petitioner.                                      49D02-1801-MI-898




      Friedlander, Senior Judge.


[1]   Appellant Indiana Alcohol and Tobacco Commission (the Commission) brings

      this interlocutory appeal of the trial court’s denial of its motion to dismiss PNC


      Court of Appeals of Indiana | Memorandum Decision 18A-MI-2522 | July 9, 2019                       Page 1 of 6
      Bancorp, LLC’s (PNC) amended petition for judicial review. Concluding that

      PNC’s failure to timely file the agency record precludes judicial review of the

      Commission’s decision, we reverse the trial court’s decision and remand for

      further proceedings consistent with this opinion.


[2]   The Commission denied PNC’s application for renewal of its permit to sell

      alcoholic beverages. On January 9, 2018, PNC filed a petition for judicial

      review of the Commission’s decision. Pursuant to statute, the agency record, or

      a request for an extension of time to file the record, was due to be filed on or

      before February 8. See Ind. Code § 4-21.5-5-13(a) (2004). This deadline passed

      without PNC filing the record or requesting an extension of time.


[3]   On February 21, PNC belatedly filed a motion for enlargement of time to file

      the agency record. In response, the Commission filed a motion to dismiss

      PNC’s petition arguing that PNC had failed to timely file either the agency

      record or a request for an extension of time. The trial court denied the

      Commission’s motion and granted PNC an extension of time through and

      including March 31. PNC filed a second motion for enlargement of time to file

      the record on March 29, which the Commission also opposed. The trial court

      proceedings between the end of March and July are not entirely clear from the

      record on appeal, but, during that time, PNC obtained new counsel.


[4]   On July 23, PNC filed an amended petition for judicial review, to which it

      attached the agency record. As before, the Commission filed a motion to

      dismiss PNC’s petition, which the trial court denied. Upon the Commission’s


      Court of Appeals of Indiana | Memorandum Decision 18A-MI-2522 | July 9, 2019   Page 2 of 6
      motion, the court certified its order for interlocutory appeal, and this Court

      granted the Commission’s motion to accept interlocutory jurisdiction.


[5]   We review de novo a trial court’s ruling on a motion to dismiss for failure to

      timely file necessary agency records where the court ruled on a paper record.

      Teaching Our Posterity Success, Inc. v. Ind. Dep’t of Educ., 20 N.E.3d 149 (Ind.

      2014).


[6]   The Administrative Orders and Procedures Act (AOPA) governs the

      proceedings and judicial review of decisions of the Commission. See Ind. Code

      §§ 4-21.5-1-3 (1995) (providing that Commission is an agency under article

      21.5), 4-21.5-2-0.1 (2011) (providing that article 21.5 governs all proceedings

      and all proceedings for judicial review of agency action). A person aggrieved

      by an action of the Commission may file a petition for review in the appropriate

      trial court. See Ind. Code § 4-21.5-5-2 (1986).


[7]   Once a petitioner has filed its petition for judicial review under Indiana Code

      section 4-21.5-5-2, it must comply with the filing requirements for the agency

      record. In that regard, Indiana Code section 4-21.5-5-13 provides in pertinent

      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. Inability to obtain

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-2522 | July 9, 2019       Page 3 of 6
              the record from the responsible agency within the time permitted
              by this section is good cause. 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.


      (Emphasis added).


[8]   Here, PNC filed its petition for judicial review of the Commission’s decision on

      January 9, 2018. Thus, pursuant to Section 13, the agency record, or a request

      for an extension of time to file the record, was due to be filed on or before

      February 8. This deadline passed without PNC filing the record or a request for

      more time. On February 21—thirteen days after the record was due to be

      filed—PNC filed a motion for enlargement of time to file the record of

      proceedings, which the trial court granted.


[9]   On appeal, the Commission contends the trial court erred by not granting its

      motion to dismiss PNC’s petition because PNC failed to timely file the record.

      Citing Trial Rule 15, PNC claims its filing of an amended petition with the

      agency record attached on July 23 relates back to the date of filing of its original

      petition for judicial review, thus making its filing of the record timely.

      Therefore, the crux of this appeal is: whether the AOPA required the court to

      deny PNC’s petition for an extension of time to file the record when the petition

      was filed after the time for filing the record or a request for an extension had

      expired.



      Court of Appeals of Indiana | Memorandum Decision 18A-MI-2522 | July 9, 2019        Page 4 of 6
[10]   In Indiana Family and Social Services Administration v. Meyer, 927 N.E.2d 367

       (Ind. 2010), our supreme court interpreted the AOPA requirement of filing the

       agency record set forth in Indiana Code section 4-21.5-5-13. The court stated,

       “We believe the statute is clear. The statute places on the petitioner the

       responsibility to file the agency record timely. Although the statute allows a

       petitioner to seek extensions of time from the trial court . . . the statute does not

       excuse untimely filing or allow nunc pro tunc extensions.” Id. at 370. Further,

       the trial court may grant a request for an extension under this section “only if

       the request is made during the initial thirty days following the filing of the

       petition for review or within any previously granted extension.” Id. at 370-71.

       Citing its decision in Meyer, the court more recently confirmed that trial courts

       lack the “authority to extend the filing deadline for an agency record that was

       not filed within the required statutory period or an authorized extension

       thereof.” Teaching Our Posterity Success, Inc., 20 N.E.3d at 155. The court also

       clearly established a bright-line approach to the filing of an agency record by

       holding that a petitioner cannot obtain consideration of its petition where the

       agency record, as defined by statute, has not been filed. Id.


[11]   As confirmed by our supreme court, the statute plainly mandates that the

       agency record or a motion for an extension of time must be filed within thirty

       days of the filing of the petition, and the trial court may not extend this

       statutory filing deadline or retroactively grant an extension. Accordingly, the

       trial court in this case lacked the authority to grant PNC’s February 21 motion

       for enlargement of time. Under the statute, PNC was required to file the


       Court of Appeals of Indiana | Memorandum Decision 18A-MI-2522 | July 9, 2019   Page 5 of 6
       agency record or file a motion for an extension of time by February 8, 2018; it

       did not do so. Therefore, the trial court should have dismissed PNC’s petition

       for judicial review.


[12]   Finally, for the reasons explained above, we reject PNC’s claim under Trial

       Rule 15 that the relation back doctrine cures the tardiness of the agency record

       that it attached to its amended petition filed in July. Moreover, it has been

       noted that after a filing deadline has passed, a party is not permitted to amend a

       petition to cure its procedural defects. Town of Pittsboro Advisory Plan Comm’n v.

       Ark Park, LLC, 26 N.E.3d 110 (Ind. Ct. App. 2015).


[13]   Judgment reversed and remanded for further proceedings consistent with this

       opinion.


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-2522 | July 9, 2019   Page 6 of 6
