First Am. Title Ins. Co. v. Robertson

65 N.E.3d 1045

FIRST AMERICAN TITLE INSURANCE COMPANY, Appellant–Petitioner,

v.Stephen W. ROBERTSON, Insurance Commissioner of the state of Indiana, in his official capacity, on behalf of the Indiana Department of Insurance, Appellee–Respondent.

No. 49A05–1512–PL–2309.

Court of Appeals of Indiana.

Dec. 2, 2016.

Julia Blackwell Gelinas, Thomas E. Wheeler, III, Maggie L. Smith, Indianapolis, IN, Attorneys for Appellant.

David L. Steiner, Kyle Hunter, Deputies Attorney General, Gregory F. Hahn, Bryan H. Babb, Bradley M. Dick, Bose McKinney & Evans, LLP, Indianapolis, IN, Attorneys for Appellee.

BARNES, Judge.

Case Summary

[1] First American Title Insurance Company ("FATIC") appeals the trial court's dismissal of its complaint against Stephen Robertson, Insurance Commissioner of the State of Indiana ("Commissioner"), in his official capacity, on behalf of the Indiana Department of Insurance ("IDOI"). We affirm.

Issue

[2] FATIC raises two issues, which we consolidate and restate as whether the trial court properly dismissed FATIC's Writ of Prohibition and Action for Mandate, Request for Declaratory Relief, and Verified Amended Petition for Judicial Review against IDOI.

Facts

[3] In March 2009, the IDOI issued a market conduct examination warrant to FATIC and retained a third party to conduct the examination.¹ The third party filed its Verified Market Conduct Examination Report with the IDOI on September 30, 2010. The IDOI forwarded the report to FATIC on October 18, 2010, and FATIC filed a response on November 10, 2010. Under Indiana Code Section 27–1–3.1–11(a), the Commissioner was required to enter an order within thirty days after the end of the period allowed for the receipt of written submissions or rebuttals:

(1) adopting the examination report as filed or with modification or corrections;

(2) rejecting the examination report with directions to the examiners to reopen the examination for purposes of obtaining additional data, documentation or information, and refiling the report under this chapter; or

(3) calling for an investigatory hearing with no less than twenty (20) days notice to the company for purposes of obtaining additional documentation, data, information and testimony.

Ind.Code § 27–1–3.1–11(a).

[4] The Commissioner failed to enter an order. On December 20, 2010, the Commissioner requested a retroactive extension of time, to which FATIC agreed. The Commissioner again failed to file a timely order and requested another retroactive extension of time, to which FATIC again agreed. Although the Commissioner was supposed to file his order by February 4, 2011, he failed to do so. On March 21, 2011, the Commissioner requested that FATIC agree to another retroactive extension of time, but FATIC declined.

[5] Despite the failure to issue a timely order, the Commissioner issued an order on April 15, 2011, appointing an administrative law judge and ordering that an investigatory hearing be held. On May 17, 2011, FATIC filed a petition for judicial review and declaratory relief with the trial court. In the petition, FATIC sought relief pursuant to the Administrative Orders and Procedures Act ("AOPA"), Indiana Code Chapter 4–21.5–1, and the Uniform Declaratory Judgment Act, Indiana Code Chapter 34–14–1. FATIC argued that the order was void because it was not timely filed. Rather than file a complete agency record, FATIC filed only the documents necessary to address the timeliness issue that was raised.

[6] IDOI filed a motion to dismiss, arguing in part that the petition should be dismissed because FATIC failed to file the complete agency record. The trial court rejected that argument, concluding that FATIC had provided all of the documents necessary to address the principal issue presented. Then, in May 2012, the trial court entered finding of fact and conclusions thereon denying FATIC's petition for judicial review and declaratory judgment. The trial court concluded that "FATIC has failed to demonstrate that it was prejudiced by [IDOI's] failure to act on the Report within thirty (3) days of FATIC's response or within thirty (30) days of the last agreed extension." Appellant's App. Vol. I p. 142.

[7] FATIC appealed this decision and argued that the Commissioner's failure to comply with the statutory deadline rendered his order void and that the trial court erred by requiring a separate showing of prejudice. Although FATIC requested that this court reverse the trial court's order and grant the petition for judicial review and declaratory judgment, FATIC did not separately discuss the declaratory judgment action in its appeal. The IDOI cross-appealed, arguing that FATIC's failure to exhaust its administrative remedies deprived the trial court of subject matter jurisdiction and that FATIC failed to submit sufficient materials for judicial review. On the cross-appeal issues, we concluded that the IDOI's exhaustion of administrative remedies argument was waived because it was raised for the first time on appeal. First American Title Ins. Co. v. Robertson ex rel. Indiana Dept. of Ins., 990 N.E.2d 9, 12–13 (Ind.Ct.App.2013). Relying in part on Izaak Walton League of Am., Inc. v. DeKalb Cnty. Surveyor's Off., 850 N.E.2d 957, 965 (Ind.Ct.App.2006), trans. denied, we also held that the materials submitted by FATIC were sufficient for judicial review, and we affirmed the trial court's denial of IDOI's motion to dismiss. As for the issues presented by FATIC, we held that, because the Commissioner failed to issue a timely order, its order was void. We also concluded that FATIC was not required to demonstrate prejudice. Although the declaratory relief claim was not addressed in the appeal, we reversed the trial court's denial of FATIC's petition for judicial review and declaratory relief and remanded with instructions to grant the petition.

[8] The IDOI sought transfer to our supreme court, which was granted. See First American Title Ins. Co. v. Robertson, 19 N.E.3d 757 (Ind.2014). Our supreme court summarily affirmed the portion of our opinion holding that the IDOI's exhaustion of administrative remedies claim was waived. In a footnote, the supreme court also summarily affirmed "that portion of the Court of Appeals opinion declaring the Commissioner's hearing order untimely and void, as well as that portion of the opinion declaring that a petitioner seeking judicial review of an agency decision need not demonstrate a separate showing of prejudice." Id. at 760 n. 3. However, the court then held that, because FATIC failed to file the complete agency record with the trial court, its petition for judicial review could not be considered. See id. at 762–63 (discussing Teaching Our Posterity Success, Inc. v. Ind. Dept. of Educ., 20 N.E.3d 149, 155 (Ind.2014) (abrogating Izaak Walton and similar cases)). Thus, the court held that the trial court erred by failing to grant IDOI's motion to dismiss the petition.

[9] The IDOI then sought rehearing of the supreme court's opinion and took issue with the language of the footnote that summarily affirmed a portion of our opinion. IDOI noted a "substantial tension, if not outright conflict" between ordering the dismissal of FATIC's judicial review petition and summarily affirming the Court of Appeals' opinion regarding the timeliness of the Commissioner's order and FATIC's failure to exhaust administrative remedies. First American Title Ins. Co. v. Robertson, 27 N.E.3d 768, 769 (Ind.2015). The supreme court agreed and granted rehearing "to delete the first clause of footnote three." Id. The court affirmed "[i]n all other respects...." Id. Consequently, the court deleted that portion of the footnote that summarily affirmed the "Court of Appeals opinion declaring the Commissioner's hearing order untimely and void" but left intact the portion of the footnote that summarily affirmed our opinion "declaring that a petitioner seeking judicial review of an agency decision need not demonstrate a separate showing of prejudice." First American Title Ins. Co., 19 N.E.3d at 760 n. 3.

[10] On remand to the trial court, FATIC filed a "Writ of Prohibition and Action for Mandate, Request for Declaratory Relief, and Verified Amended Petition for Judicial Review." Appellant's App. Vol. I p. 39. In the section regarding its request for declaratory relief, FATIC alleged that an administrative agency's void action is subject to collateral attack at any time. Id. at 55 (citing Mies v. Steuben Cnty. Bd. of Zoning Appeals, 970 N.E.2d 251, 258 (Ind.Ct.App.2012), trans. denied ). IDOI filed a motion to dismiss FATIC's filing. IDOI argued, in part, that AOPA was FATIC's exclusive remedy and that, based on the supreme court's opinion, FATIC's AOPA claim failed. IDOI also argued that FATIC's writ of prohibition and mandate and declaratory judgment actions failed because they were based on the same conduct as the AOPA claim. According to IDOI, FATIC could "not simply bring an AOPA claim dressed as a declaratory judgment action." Id. at 191. IDOI argued that the writ of prohibition and mandate and declaratory judgment claims were barred by res judicata and the law of the case doctrine. In response, FATIC argued that res judicata and the law of the case doctrine were inapplicable and that the Commissioner's void order was subject to collateral attack at any time.

[11] The trial court granted IDOI's motion to dismiss. The trial court "dismisse[d] the original Verified Petition consistent with the Supreme Court's clear directive." Appellant's Appendix Vol. I p. 16. The trial court also concluded that the "declaratory judgment was not a separate claim that could survive dismissal" and that FATIC could not amend the petition. Id. at 17. The trial court dismissed the mandate and declaratory judgment claims in the amended petition based on res judicata. Finally, the trial court concluded that AOPA was the exclusive means for judicial review of IDOI's action and, "where an administrative remedy is available, filing a declaratory judgment action is...