text:
    In the Matter of Jeremy S. BRENMAN, Respondent.
    No. 53S00-1212-DI-707.
    Supreme Court of Indiana.
    May 16, 2013.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

On January 8, 2013, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission’s investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court’s order to show cause. The Commission has filed a “Request for Ruling and to Tax Costs.”

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(f)(3), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2) the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10)(f)(5), that Respondent reimburse the Disciplinary Commission $511.50 for the costs of prosecuting this proceeding.

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Jeremy S. BRENMAN, Respondent.
    No. 53S00-1301-DI-50.
    Supreme Court of Indiana.
    May 16, 2013.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

On January 28, 2013, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission’s investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court’s order to show cause. The Commission has filed a “Request for Ruling and to Tax Costs.”

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(f)(3), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2) the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10)(f)(5), that Respondent reimburse the Disciplinary Commission $511.50 for the costs of prosecuting this proceeding.

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Jeremy S. BRENMAN, Respondent.
    No. 53S00-1301-DI-51.
    Supreme Court of Indiana.
    May 16, 2013.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

On January 30, 2013, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission’s investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court’s order to show cause. The Commission has filed a “Request for Ruling and to Tax Costs.”

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(f)(3), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2) the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10)(f)(5), that Respondent reimburse the Disciplinary Commission $511.50 for the costs of prosecuting this proceeding.

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


author: SHARPNACK, Senior Judge.

text:
    Michael L. CURTIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1203-MI-271.
    Court of Appeals of Indiana.
    April 1, 2013.
    Michael L. Curtis, Indianapolis, IN, Appellant Pro Se.
    Gregory F. Zoeller, Attorney General of Indiana, Stephanie L. Rothenberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION ON REHEARING

SHARPNACK, Senior Judge.

Following our opinion in Curtis v. State, 981 N.E.2d 625 (Ind.Ct.App.2013), which reversed the trial court’s denial of Michael Curtis’s motion for relief from judgment and remanded with instructions to vacate the order authorizing forfeiture of his truck, the State petitions for rehearing. We grant rehearing to address the State’s argument but still conclude that the trial court abused its discretion by denying Curtis’s motion.

Curtis was caught selling pirated movies out of his truck. The State charged him with four counts of Class D felony fraud under Indiana Code section 35-43-5-4(10)(A) (2005), which makes it a crime to “knowingly or intentionally ... sell[ ] ... a recording for commercial gain or personal financial gain that does not conspicuously display the true name and address of the manufacturer of the recording.” The State also filed a complaint for forfeiture of Curtis’s truck under Indiana Code section 34 — 24—1—1(a)(1 )(B) (2009), which allows the seizure of vehicles “if they are used or are intended for use by the person or persons in possession of them to transport or in any manner to facilitate the transportation of ... [a]ny stolen (IC 35-43-4-2) or converted property (IC 35-43-4-3) if the retail or repurchase value of that property is one hundred dollars ($100) or more.”

Curtis pleaded guilty to one count of fraud, the State dismissed the remaining charges, and the trial court entered judgment as a misdemeanor. The State then filed a motion for summary judgment in the forfeiture action. The trial court granted the motion, entering an order authorizing forfeiture of Curtis’s truck.

After his motion for a belated appeal was not acted upon by the trial court, Curtis filed a motion for relief from judgment. In the motion, Curtis argued that fraud was not a crime for which his truck could be forfeited. The trial court denied the motion without a hearing.

On appeal, Curtis claimed that the trial court abused its discretion by denying his motion because copyright infringement, he argued, does not constitute theft. We examined the authority he cited, Dowling v. United States, 473 U.S. 207, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985), and found it persuasive. In that case, the Supreme Court of the United States reversed a defendant’s convictions for interstate transportation of stolen property on the basis that the bootleg records transported did not constitute stolen property. We also rejected the State’s argument that Curtis could not challenge the forfeiture because he had already pleaded guilty to committing the underlying crime with his truck. We held, “The crime to which Curtis pleaded guilty, however, was not theft or conversion, and the forfeiture provision here allows seizure only in cases of stolen or converted property.” Curtis, 981 N.E.2d at 629. We thus reversed the trial court and remanded with instructions to vacate the forfeiture order.

In its petition for rehearing, the State now argues that Dowling is not binding and that Yao v. State, 975 N.E.2d 1273 (Ind.2012), mandates a different outcome. We agree that Dowling, involving federal statutory interpretation, does not bind us. As for Yao, that case involved defendants who were charged in part with theft for selling airsoft gun replicas allegedly violating a firearms manufacturer’s trademark on real weapons. There, the Indiana Supreme Court noted that our criminal laws define “property” as “anything of value” and extends to “intangibles,” Ind.Code § 35-41-l-23(a) (1983) (now codified at Ind.Code § 35-31.5-2-253(a) (2012)), and thus determined that the trademarks alleged to have been stolen could constitute property depending on the evidence presented at trial. Yao, 975 N.E.2d at 1281. After rejecting the defendants’ contention that it is categorically impossible to exert unauthorized control over a trademark, the Court held that the trial court did not abuse its discretion by denying the defendants’ motion to dismiss the theft charges. Id. at 1281-82.

We agree that Yao might support the proposition that pirated movies constitute stolen property. However, this does not necessarily answer the forfeiture question. To support a claim for forfeiture of a vehicle, the State must show by a preponderance of the evidence that: (1) the vehicle was within the definition of property subject to seizure under Indiana Code section 34-24-1-1 and (2) a person who has an ownership interest of record in the bureau of motor vehicles knew or had reason to know that the vehicle was being used in the commission of the offense. See Ind. Code § 34-24-l-4(a) (2002).

In Katner v. State, 655 N.E.2d 345 (Ind.1995), the trial court ordered the defendant’s vehicle forfeited under a different provision of the- statute, now codified at Section 34-24-l-l(a)(l)(A)(vii), allowing forfeiture where the vehicle was used to transport “[a] controlled substance for the purpose of committing, attempting to commit, or conspiring to commit ... [possession of cocaine.”

The Indiana Supreme Court reversed the forfeiture. It determined that the forfeiture provision required the State to show a nexus between the property sought in forfeiture and the underlying offense. Katner, 655 N.E.2d at 349. Because the controlled substance transported by the vehicle was only cocaine residue in a container in the driver’s pocket, the Court concluded that the State failed to show a nexus between the act of cocaine possession and the use of the vehicle. Id.

Although Katner specifically examined the forfeiture provision regarding controlled substances, it noted that the relationship between two factual prerequisites necessary for vehicle forfeiture is “the connection between a vehicle’s use and the purpose for which it is used.” Id. at 348, We believe the nexus analysis applies' to the forfeiture provision regarding stolen or converted property.

We acknowledge the Indiana Supreme Court’s statements that the owner of a vehicle need not be charged or convicted on the underlying offense for forfeiture to occur. See Serrano v. State, 946 N.E.2d 1139, 1140 (Ind.2011); Katner, 655 N.E.2d at 348. Indeed, a person’s vehicle may be forfeited even if it was another person who used the vehicle to transport stolen property, so long as the owner of the vehicle knew or had reason to know that the vehicle was being used in that illicit manner. Nevertheless, we find that where the underlying offense actually charged is, as here, fraud (knowingly or intentionally selling a recording for commercial gain or personal financial gain that does not conspicuously display the true name and address of the manufacturer of the recording) and not theft (knowingly or intentionally exerting unauthorized control over another person’s property with intent to deprive that person of any part of its value or use) or conversion (knowingly or intentionally exerting unauthorized control over another person’s property), there is no predicate for forfeiture.

We therefore affirm our original disposition.

ROBB, C.J., and KIRSCH, J., concur.


author: ROBB, Chief Judge. KIRSCH, Judge,

text:
    LEBAMOFF ENTERPRISES, INC., Appellant-Petitioner, v. INDIANA ALCOHOL & TOBACCO COMMISSION, Appellee-Respondent.
    No. 49A02-1210-MI-826.
    Court of Appeals of Indiana.
    April 26, 2013.
    Rehearing Denied May 30, 2013.

      Matthew M. Price, Shannon D. Lan-dreth, Bingham Greenbaum Doll, LLP, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Elizabeth Rogers, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

Lebamoff Enterprises, Inc. (“Leba-moff’), appeals the trial court’s dismissal of its petition for judicial review. Leba-moff 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 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 Le-bamoffs 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 “[wjithin 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). 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 “[ijnability 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 Lebamoffs 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.

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 Leba-moff 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. However, taking a larger 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 Lebamoffs 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 Lebamoffs failure to timely file that same record. The ATC acknowledges that Lebamoff included a proposed time-line 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 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 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. 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 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 Lebamoffs 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 Lebamoffs 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 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.

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 Inability to obtain the record from the responsible agency within the time permitted by this section is good cause.” Id.

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.

      . 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 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.

      . Justice Sullivan did not participate in the decision, and the remaining four justices were evenly split on the outcome of this issue.


author: MAY, Judge.

text:
    NATURAL RESOURCES DEFENSE COUNCIL, Appellant-Respondent, v. POET BIOREFINING-NORTH MANCHESTER, LLC, Poet Biorefining-Cloverdale, LLC, Central Indiana Ethanol, Inc., and Indiana Department of Environmental Management, Appellees-Petitioners, Green Plains Bluffton, LLC, and Anderson Clymers Ethanol, LLC, Appellees-Intervenors.
    No. 49A02-1205-MI-423.
    Court of Appeals of Indiana.
    April 30, 2013.
    Rehearing Denied August 5, 2013.

      Kim E. Ferraro, Hoosier Environmental Council, Valparaiso, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Andrew R. Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Ind. Dept, of Environmental Management.
    Anthony C. Sullivan, E. Sean Griggs, Mark J. Crandley, Timothy A. Haley, Barnes & Thornburg, Indianapolis, IN, Attorneys for Central'Indiana Ethanol, Inc.
    John E. Haller, Shumaker, Loop & Kendrick, LLP, Columbus, Louis E. Tosi, Joseph S. Simpson, Shumaker, Loop & Kendrick, LLP, Toledo, OH, Attorneys for Andersons Clymers Ethanol, LLC.
    Vicki J. Wright, Bryan S. Strawbridge, Krieg DeVault LLP, Indianapolis, IN, Attorneys for Green Plans Bluffton, LLC.
    Terri A. Czajka, Ice Miller LLP, Indianapolis, IN, Attorneys for Poet Biorefin-ing-North Manchester, LLC and Poet Biorefining-Cloverdale.
   OPINION

MAY, Judge.

In 2010 the Indiana Department of Environmental Management (IDEM) issued permits to some fuel-grade ethanol production facilities. The permits did not categorize the facilities as “chemical process plants”, as such facilities had been categorized in the past. Facilities identified as “chemical process plants” are permitted to emit only 100 tons of certain air pollutants per year, while facilities not so identified may emit up to 250 tons of certain air pollutants per year.

The Natural Resources Defense Council (NRDC) challenged IDEM’s classification of the ethanol production facilities outside the category of “chemical process plants,” and IDEM’s Office of Environmental Adjudication (OEA) determined the facilities should have been categorized as “chemical process plants.” The facilities appealed to the Marion Superior Court, which reversed the OEA’s determination such that the plants again were excluded from the category of “chemical process plants.”

The issue before us is whether the State could properly exclude fuel-grade ethanol production plants from the category of “chemical process plants” without Environmental Protection Agency (EPA) approval of a modification to the Indiana State Implementation Plan (SIP). As it could not, the ethanol plants remain “chemical process plants,” and we must reverse the trial court.

FACTS AND PROCEDURAL HISTORY

The Clean Air Act creates a comprehensive scheme for controlling air quality through federal and state regulation. Congress and the EPA set national minimum air-quality standards, but the states have primary responsibility for assuring air quality. The states accomplish this task by promulgating regulations in the form of the SIP. Each state’s SIP must set air-quality standards that are at least as stringent as those established by the Clean Air Act and its implementing regulations. The SIP becomes federal law once the EPA approves it, and it cannot be changed unless and until the EPA approves any change. Safe Air for Everyone v. U.S. E.P.A., 488 F.3d 1088, 1097 (9th Cir.2007). Consequently, a state’s interpretation of the regulations incorporated into the SIP, even if binding as a matter of state law, is not directly dispositive of the meaning of the SIP under federal law. Federal law does not prevent a state from having a broader or more stringent regulatory program than is required by federal law. See Ind. Dept. of Envtl. Mgmt. v. Twin Eagle LLC, 798 N.E.2d 839, 842 (Ind.2003) (addressing Clean Water Act).

One part of the Clean Air Act that works through the SIPs is the prevention-of-signifícant-deterioration (PSD) program, which seeks to prevent significant deterioration of air quality in certain areas. 42 U.S.C. §§ 7470-79. The ethanol plants at issue in the case before us are located in such areas. The PSD program applies to “major emitting facilities,” and the definition of “major emitting facility” for PSD purposes includes “chemical process plants.” 42 U.S.C. § 7479. A “major emitting facility” is a stationary source of air pollutants that emits, or has the potential to emit, one hundred tons per year or more of any air pollutant from certain types of stationary sources, including chemical process plants. Id. Such facilities have two emission thresholds. If a facility falls within one of twenty-eight listed “industrial categories,” it is subject to the 100 ton-per year emissions limit. One of those categories is “chemical process plant.” Id. If it is outside one of those listed industrial categories, it may emit pollutants at a 250 ton-per-year limit. Id.

The Indiana SIP provides that federal PSD regulations and Indiana Air Pollution Control Board rules are incorporated by reference. The SIP has been in effect in its current form since 2001, and the 2001 version of the Indiana SIP was the last one to be approved by the EPA.

A SIP is to provide for revision “as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard.” 42 U.S.C. § 7410. But modifications or revisions are not effective unless approved by the EPA. Sierra Club v. Indiana-Kentucky Elec. Corp., 716 F.2d 1145, 1152 (7th Cir.1983).

Pollutant-emitting activities are classified by “industrial groupings.” Activities are “considered as part of the same industrial grouping if they belong to the same major group, for example, that have the same first two (2) digit code, as described in the Standard Industrial Classification Manual, 1972, as amended by the 1977 Supplement (U.S. Government Printing Office).” 326 Ind. Admin. Code 2-2-l(j). Fuel ethanol plants are, for purposes of the Indiana SIP, “chemical process plants” because they are within that industrial grouping. Specifically, at the time the Indiana SIP was approved, fuel ethanol plants were included in Major Group 28 as “Industrial Organic Chemicals, Not Elsewhere Classified.” (App. at 54-55.) Included in that subcategory was “Ethanol, industrial.” {Id. at 55.)

In 2007, the EPA promulgated a final rule that excluded fuel ethanol plants from the definition of “chemical process plant.” 72 Fed. Reg. 24059. In its 2006 proposal to amend the rule that resulted in the 2007 final rule, the EPA noted:

[Ojne of the source categories in the list of 28 source categories included in the “major emitting facility” definition (and in the NSR and title V regulations) is chemical process plants. The major group SIC [Standard Industrial Classification] code (2-digit SIC code) in which chemical process plants falls is major group 28 — “Chemicals and Allied Products.” The 4-digit SIC code which is directly applicable to the production of ethánol for fuel is SIC code 2869 — “Industrial Organic Chemicals, Not Elsewhere Classified.” “Ethanol, industrial” and “Ethyl alcohol, industrial (nonbever-age)” are both listed in the SIC Manual as a specific product within this 4-digit category.

71 Fed. Reg. 12240-01 (footnote omitted). The EPA went on to note that “[g]iven that ethanol fuel production is specifically listed under the 2-digit ‘Major Group’ SIC code of 28 in the SIC manual ... [the] EPA has historically required production facilities or units which produce ethanol fuel to be classified as chemical process plants ... subject to the 100 tons per year threshold under PSD.” Id. at 12244.

The trial court found that, before 2007, the EPA and IDEM “consistently licensed fuel ethanol plants as ‘chemical process plants’ subject to [the 100 tons-per-year emissions limit].” (App. at 9.) In 2007, the EPA issued a final rule that provided facilities that produce ethanol fuel would be excluded from the definition of “chemical process plants” so such plants could emit pollutants at the higher level. 72 Fed. Reg. 24060-01 (May 1, 2007). In 2011, IDEM issued a “nonrule policy document” • that noted the 2007 EPA rule change and stated its position that ethanol plants were not “chemical process plants.” http://www. in.gov/idem/files/nrpd-air_035.pdf (last visited March 13, 2013).

The Indiana legislature passed a law providing ethanol plants were not “chemical process plants”:

For purposes of rules adopted by the board, a reference to “chemical process plants” does not include an ethanol production operation that:
(1) produces ethanol by natural fermentation after July 2, 2007; and
(2) is included in the North American Industry Classification System (NAICS) code:
(A) 325193 (Ethyl Alcohol Manufacturing); or
(B) 312140 (Distilleries);
as described in 72 FR 24059 et seq. (May 1, 2007).

Ind.Code § 13-17-3^4(e). IDEM promulgated a rule to the same effect.

(ff) “Major stationary source” means the following:
(1) Any of the following stationary sources of air pollutants that are located or proposed to be located in an attainment or unclassifíable area as designated in 326 IAC 1-4 and that emit or have the potential to emit one hundred (100) tons per year or more of any regulated NSR pollutant:
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
(U) Chemical process plants, excluding ethanol production facilities that produce ethanol by natural fermentation included in North American Industry Classification System (NAICS) codes 325193 for Ethyl Alcohol Manufacturing or 312140 for Distilleries, as revised in 2007.

326 Ind. Admin. Code 2-2-l(ff)(l)(U). But the Indiana SIP, through which the state implements the federal Clean Air Act, was never modified, such that the modified version could be approved by the EPA.

The EPA apparently contemplated that states would want to follow suit and change their SIPs accordingly: “we encourage such State, local and tribal authorities in such areas to make such SIP or title V program changes in the future to enhance the clarity of the existing rules.” 72 Fed. Reg. 24074-75. However, it also noted “it may not be necessary for a State ... to revise its SIP or Title V programs to begin to implement these changes.” Id. at 24074. Some authorities, the EPA said, “may be able to adopt these changes through a change in the interpretation of the term “chemical process plant” without, the need to revise the SIP.” Id. at 24074. The EPA did not specify which authorities could adopt the changes through “interpretation.”

NRDC challenged certain permits IDEM issued that did not subject the ethanol plants to the 100 ton per year limit. The OEA determined IDEM had improperly categorized the facilities. As the facilities were chemical process plants, the OEA held, the fuel ethanol plants should have been subject to the lower pollution limits.

IDEM and certain ethanol plant operators appealed and the Marion Superior Court reversed the OEA. The court found the EPA approved a 2003 amendment to the Indiana SIP that incorporated the Indiana PSD program, but IDEM had not submitted a formal request to EPA to amend the PSD program. It noted the term “chemical process plant” had been a part of the Indiana PSD rules since 1980. The term had been subject to multiple interpretations by federal and state agencies that administered the program, but before 2007, both the EPA and IDEM had “consistently licensed fuel ethanol plants as ‘chemical process plants’ subject to” the 100 ton-per-year limit. (App. at 9.) The court noted the 2007 EPA rule that excluded fuel ethanol plants from the category of chemical process plants, but found no amendment to the Indiana SIP was submitted to or approved by the EPA. Nonetheless, the trial court found “the Indiana legislature made its intent clear when it amended Indiana statute to specifically exclude ethanol production plants from the definition of ‘chemical process plant’ in Ind.Code § 13-17-3-4(3),” {Id. at 11), and IDEM amended the Indiana Administrative Code to the same effect. The trial court characterized the EPA rule and the Indiana actions as “clarifications,” (Id. at 11), of the definition of “chemical process plant,” and reversed the OEA based on what it characterized as those expressions of “legislative intent.” (Id.)

DISCUSSION AND DECISION

The Administrative Orders and Procedures Act (AOPA) limits judicial review of agency action. Agency action subject to AOPA will be reversed only if a person seeking judicial relief has been prejudiced by an agency action that is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to 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. Huffman v. Office of Envtl. Adjudication, 811 N.E.2d 806, 809 (Ind.2004) (citing Ind. Code § 4-21.5-5-14). We give deference to an administrative agency’s findings of fact, if supported by substantial evidence, but review questions of law de novo. Id.

The trial court acknowledged IDEM submitted no request to amend its SIP, and the EPA has approved no such change. But the court characterized the EPA’s action changing the categorization of ethanol plants as a “clarification made by subsequent changes to EPA rule,” (App. at 11), and it found the “Indiana legislature made its intent clear” when it amended the Indiana Code to the same effect. As the EPA rule change was more than a mere “clarification,” Indiana was obliged to seek approval of an amendment to its SIP. Because it did not, the OEA was correct that the facilities were chemical process plants pursuant to the Indiana SIP and permits allowing pollutant emissions at the 250 ton-per-year level should not have been issued absent an EPA-approved change in the Indiana SIP.

In its 2007 Final Rule excluding ethanol plants from the category of chemical process plants, the EPA was explicit that its action followed from its proposal “to change the definition of ‘chemical process plants” ’ to exclude fuel ethanol facilities. 71 Fed. Reg. at 24062. The EPA could not have so “changed the definition” to that effect had fuel ethanol plants not previously been considered “chemical process plants.” As the Indiana SIP was not amended to similarly change the definition of chemical process plants, fuel ethanol plants in Indiana remain in that category.

Further, as stated above, the EPA explicitly contemplated its 2007 definitional change would implicate state SIPs. In its final rule, the EPA said “we encourage such State, local and tribal authorities in such areas to make such SIP or title V program changes in the future to enhance the clarity of the existing rules.” Id. at 24075. As Indiana never submitted and the EPA never approved an amendment to the Indiana SIP that would change the definition of “chemical process plants” to remove fuel ethanol plants from the 100 ton-per-year pollution limit, the OEA correctly determined the permits at issue should not have been granted.

Even if the failure to amend Indiana SIP could be disregarded, as the appellees suggest, IDEM’s past consistent treatment of fuel ethanol plants as chemical process plants would dictate the result we reach. Once an agency gives its regulation an interpretation, as has IDEM by consistently treating fuel ethanol facilities as chemical process plants in its permitting decisions prior to 2007, it can change that interpretation only “as it would formally modify the regulation itself: through the process of notice and comment rulemak-ing.” Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 586 (D.C.Cir.1997), cert. denied sub nom. Pollin v. Paralyzed Veterans of America, 528 U.S. 1003, 118 S.Ct. 1184, 140 L.Ed.2d 315 (1998). That court noted:

Under the [Administrative Procedures Act (APA) ], agencies are obliged to engage in notice and comment before formulating regulations, which applies as well to “repeals ” or “amendments.” See 5 U.S.C. § 551(5). To allow an agency to make a fundamental change in its interpretation of a substantive regulation without notice and comment obviously would undermine those APA requirements. That is surely why the Supreme Court has noted (in dicta) that APA rulemaking is required where an interpretation ‘adopt[s] a new position inconsistent with ... existing regulations.’

Id. And see Alaska Prof'l Hunters Ass’n, Inc. v. F.A.A., 177 F.3d 1030, 1031 (D.C.Cir.1999).

In Alaska Professional Hunters Association, beginning in 1963, the Federal Aviation Administration, through its Alaskan Region, consistently advised guide pilots that they were not governed by regulations dealing with commercial pilots. “FAA personnel in Alaska consistently followed the interpretation in official advice to guides and guide services.” Id. At some point the FAA published a “Notice to Operators” in the Federal Register stating Alaskan guides who transport customers by aircraft to and from sites where they provide guiding services, with transportation included in the package price of the trip, henceforth must comply with those regulations for commercial pilots. Id. at 1033.

The Alaska Professional Hunters Association argued the Notice to Operators altered the FAA’s well-established interpretation of its regulations and should have been promulgated pursuant to notice and comment rule making. The FAA argued the Notice to Operators was “merely an interpretative rule,” exempt from the notice and comment requirements of the APA. Id. The court rejected that argument, stating “when an agency has given its regulation a definitive interpretation, and later significantly revises that interpretation, the agency has in effect amended its rule, something it may not accomplish without notice and comment.” Id. at 1034.

Because IDEM had, in its prior permitting decisions, given the term “chemical process plant” a “definitive interpretation, and later significantly revisefd] that interpretation,” it was obliged to seek EPA approval for an amended SIP. See id. We accordingly reverse the trial court.

Reversed.

ROBB, C.J., and PYLE, J., concur.

      . The appellees also argued before the trial court that it should have stayed this action pending a decision by the Circuit Court of the District of Columbia on a challenge to a 2007 EPA rule that excluded fuel-grade ethanol production plants from the "chemical process plant” category. As Indiana's failure to modify its own SIP to exclude fuel ethanol plants from the more strict pollution limits is determinative of the result herein, we need not stay this action.
      One Appellee, Green Plains Bluffton, argues NRDC does not have standing to bring this action. The OEA found NRDC had "associational standing” to sue on behalf of its members. (App. at 18.) Green Plains does not challenge that OEA determination, and the trial court did not address standing. Green Plains now argues NRDC is alleging the permits do not comply with the SIP, and it asserts “the sole remedy is under 42 U.S.C. § 7509” and only the EPA may make such a challenge. (Br. of Appellee Green Plains Bluffton, LLC at 14.) 42 U.S.C. § 7509 addresses sanctions the EPA may impose on states that have not submitted or implemented plans to address areas designated as "non-attainment.” As the case before us does not involve "sanctions” or "nonattainment areas,” we decline to hold NRDC lacks standing.

      . The trial court found, among other things: "The Indiana legislature made its intent clear” when it amended the Indiana Code to exclude fuel ethanol plants. (App. at 11.) As the Indiana SIP became federal law when the EPA approved it, the significance of any expression of "intent” by the Indiana legislature is not apparent.

      . The trial court's decision appears to be premised in part on its determination that because the EPA decided in 2007 to exclude ethanol plants from the more stringent pollution limitations applicable to chemical process plants, the "legislative intent regarding the definition of 'chemical process plant’ was made clear when the EPA issued its Final Rule.” (App. at II.) As Federal law does not prevent a state from having a broader or more stringent regulatory program, we decline to find a change in the EPA rule, without more, indicates a "legislative intent” that Indiana's regulation become less stringent.

      .There have been minor revisions not relevant to this case.

      . We find no "definition” of "chemical process plant” in the Indiana Code, nor do we find any such section in the Code. The trial court may have been referring to Ind.Code § 13-17-3-4(e), which provided:
      For purposes of rules adopted by the board, a reference to "chemical process plants” does not include an ethanol production operation that:
      (1) produces ethanol by natural fermentation after July 2, 2007; and

        (2) is included in the North American Industry Classification System (NAICS) code:
      (A) 325193 (Ethyl Alcohol Manufacturing): or
      (B) 312140 (Distilleries)!.]

      . While the trial court found the legislative and administrative actions clarified that "definition,” it also noted "[t]there is not a universally accepted definition of chemical process.” (App. at 8 n. 3.)

      . We acknowledge EPA's statement some state authorities "may be able to adopt these changes through a change in the interpretation of the term "chemical process plant” without the need to revise the SIP.” 71 Fed. Reg. at 24074. EPA did not specify which authorities could adopt the changes through "interpretation,” and we are directed to nothing in the record that indicates Indiana would have such authority.

      . We acknowledge IDEM did promulgate a new rule excluding fuel ethanol plants. But as explained above, that was not enough— EPA approval of an amended SIP was required.


author: BARNES, Judge.

text:
    John A. HUTCHINSON, Appellant-Plaintiff/Counter Defendant, v. The CITY OF MADISON, Appellee-Defendant/Counter Plaintiff.
    No. 39A01-1208-CC-394.
    Court of Appeals of Indiana.
    April 30, 2013.

      James C. Spencer, Dattilo Law Office, Madison, IN, Attorney for Appellant.
    William Joseph Jenner, Jenner Pattison Hensley & Wynn, LLP, Madison, IN, Attorney for Appellee.
   OPINION

BARNES, Judge.

Case Summary

John Hutchinson appeals the trial court’s dismissal without prejudice of the counterclaim for appropriation of real estate filed by the City of Madison (“the City”). Hutchinson also appeals the trial court’s determination that an interlocal agreement between the City and Jefferson County (“the County”) was valid. We affirm.

Issues

Hutchinson raises two issues, which we restate as:

I. whether the trial court should have dismissed the City’s counterclaim for appropriation of real estate with prejudice; and
II. whether the trial court properly determined that the interlocal agreement between the City and the County was valid.

Facts

Hutchinson owns property north and south of Hutchinson Lane in Jefferson County. In 2011, the City and the County entered into an interlocal agreement (“the Agreement”) addressing the improvement of Hutchinson Lane. Pursuant to the Agreement, the City was to serve as the lead agency for the design and construction of the improvements, and the City agreed to be responsible for the overall administration of the design and construction. Because portions of the project were located within corporate boundaries of the City and other portions were located within the corporate boundaries of the County, it was necessary for the City to acquire land within the corporate boundaries of the County to complete the project. The project required the appropriation of approximately four acres of Hutchinson’s property by the City for temporary and permanent right-of-ways.

Section One of the Agreement contained nine specific obligations of the City regarding the improvements. Section Two of the Agreement provided, “Obligations of the County. The County shall have no obligation for the Project other than to agree that the City is given the powers to perform and may perform the Project as set forth in Section One above.” App. p. 111.

Before formally entering into the Agreement, the City offered Hutchinson $25,107.50 for the property. Hutchinson responded, indicating that the offer did not include an appraisal and suggesting that he would respond to the offer after receiving an appraisal. On March 2, 2011, Hutchinson filed a declaratory judgment action challenging the Agreement. On May 2, 2011, the City filed its answer and a counterclaim for appropriation of the portion of Hutchinson’s property it needed for the project. On January 20, 2012, after a hearing, the trial court concluded that the Agreement was valid and entered judgment against Hutchinson on the declaratory judgment action. Hutchinson petitioned to certify the trial court’s order for interlocutory appeal, but the trial court denied the request.

On February 8, 2012, Hutchinson filed statutory objections to the City’s counterclaim for appropriation, including an assertion that the property had not been properly appraised. On July 25, 2012, the trial court conducted a hearing at which Hutchinson presented evidence. On August 6, 2012, the trial court sustained Hutchinson’s objection and dismissed the counterclaim without prejudice. Hutchinson now appeals.

Analysis

As an initial matter, the parties disagree regarding the proper standard of review. Because the underlying facts are not in dispute, and the issues raised by Hutchinson are questions of law, we apply a de novo standard of review and owe no deference to the trial court’s determination of such questions. See Tankersley v. Parkview Hosp., Inc., 791 N.E.2d 201, 204 (Ind.2003).

I. Dismissal

Before proceeding to condemn, the City was statutorily required to make an effort to purchase the property from Hutchinson. See Ind.Code § 32-24-1-3(b). An effort to purchase must include establishing a proposed purchase price for the property, providing the owner with an appraisal or other evidence used to establish the proposed purchase price, and conducting good faith negotiations. I.C. § 32-24-l-3(c); see also Unger v. Indiana & Michigan Elec. Co., 420 N.E.2d 1250, 1258 (Ind.Ct.App.1981) (observing that “a good faith effort to purchase is a condition precedent to the right to proceed upon a complaint in condemnation.”). On appeal, the City concedes that it violated Indiana Code Section 32-24-l-3(c) because it failed to tender an appraisal when its acquisition offer was presented to Hutchinson. Accordingly, the parties do not dispute that dismissal was proper — they only dispute whether the dismissal should have been with or without prejudice.

Hutchinson asserts that the trial court should have dismissed the City’s counterclaim with prejudice because it was an adjudication on the merits. Hutchinson also suggests that relitigation of the condemnation action would be barred by res judicata. See Midway Ford Truck Ctr., Inc. v. Gilmore, 415 N.E.2d 134, 136 (Ind.Ct.App.1981) (“It is generally recognized that a dismissal with prejudice is a dismissal on the merits.... As such it is conclusive of the rights of the parties and res judicata as to the questions which might have been litigated.”).

Hutchinson claims that the dismissal was an adjudication on the merits because the July 25, 2012 hearing was a “full-blown hearing” on the issue of whether the City complied with Indiana Code 32-24-l-3(c). However, the evidence offered by Hutchinson showed that the City did not provide him with an appraisal and established only that the City did not meet a condition precedent for filing its counterclaim for the appropriation of his property. In other words, although Hutchinson showed that the City’s counterclaim was procedurally defective, he did not establish that the City did not have the authority to acquire his property through eminent domain proceedings generally.

In fact, “[t]he state has inherent authority to take private property for public use.” Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731 (Ind.2010) (citing Kelo v. City of New London, 545 U.S. 469, 477, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005)). The Indiana Constitution and the Fifth Amendment to the United States Constitution require just compensation if this authority is exercised, and Indiana Code Chapter 32-24-1 outlines the process by which the State or other governmental entity is to initiate eminent domain proceedings. Id. “The fundamental purpose of the eminent domain act is to ensure landowners receive just compensation for property taken for public use.” Unger, 420 N.E.2d at 1257. Accordingly, we are not convinced that the failure to comply with Indiana Code Section 32-24-l-3(c) forever bars the state from acquiring that property so long as a property owner receives just compensation for the taking.

This conclusion is supported by Indiana Code Section 32-24-l-8(d), which provides that, if a property owner objects to the proceedings and the objection is sustained, the complaint may be amended or the decision appealed. Although, as the parties acknowledge, the City cannot remedy the failure to provide an appraisal by amending the complaint, we believe this provision is indicative of the legislature’s intent to allow the City the opportunity to correct procedural errors and refile the complaint. Also, Indiana Code Section 32-24-1-16 contemplates a taking without the initiation of a condemnation proceeding and allows a property owner to bring a suit for inverse condemnation to recover money damages. Murray, 925 N.E.2d at 731. Surely, if interests in land may be taken for public use without having been obtained under the eminent domain statutes, then at the very least the City should be permitted to refile an action for appropriation upon complying with Indiana Code Section S2-24-l-3(c).

We also disagree with Hutchinson’s assertion that the City’s failure to comply with Indiana Code Section 32-24-1 — 3(c) is reason enough to dismiss the counterclaim with prejudice because the failure to provide an appraisal frustrates the statutory goal of good-faith negotiations. “[T]he purpose of the good faith effort to purchase is to bring the landowner and condemnor together, if only briefly, to attempt to negotiate a sale and purchase upon favorable terms.” Unger, 420 N.E.2d at 1260. “In complying with this requirement, the potential parties to an action in condemnation are presented with an opportunity to agree upon mutually satisfactory terms for what amounts to the relinquishment of certain property rights and thereby to avoid the costs and inherent risks of such a proceeding.” Id. at 1258. “Terms proffered and rejected fall by the wayside as appraisers and juries make their determinations, i.e. the parties’ dealings have no bearing upon the ultimate award of just compensation.” Id. at 1260. Thus, the purpose of the good faith offer requirement is to avoid unnecessary litigation, not to confer a substantive benefit on the property owner, and we are not convinced that the failure to conduct good faith negotiations alone warrants the dismissal of a condemnation action with prejudice.

Given the City’s inherent authority to take private property and the statutory scheme for appropriating property, we do not believe that the dismissal based on the failure to provide an appraisal with an offer to purchase was an adjudication on the merits. See, e.g., In re L.B., 889 N.E.2d 326, 333-34 (Ind.Ct.App.2008) (concluding that the dismissal of a petition to terminate parental rights because parents were not notified of the proceeding as mandated by statute, a procedural precedent that must be performed before a termination action is commenced, was not a judgment on the merits); St. Anthony Med. Ctr., Inc. v. Smith, 592 N.E.2d 732, 736 (Ind.Ct.App.1992) (“The proper course of action when a plaintiff fails to comply with the [Medical Malpractice] Act is for the trial court to dismiss the complaint without prejudice, thereby allowing the plaintiff to refile after the medical review panel has issued its opinion.”); Cf., Creech v. Town of Walkerton, 472 N.E.2d 226, 229 (Ind.Ct.App.1984) (observing that an adjudication based on the running of a statute of limitation is a judgment on the merits and concluding that, because original claim was dismissed for failing to comply with the notice provisions of the Tort Claims Act, there was an adjudication on the merits barring further pursuit of such claim). Thus, the trial court properly dismissed the City’s counterclaim without prejudice.

II. The Agreement

“Generally, ‘Interlocal Agreements,’ also referred to as ‘Interlocal Cooperation Agreements,’ are formal vehicles through which municipalities or political subdivisions may eliminate barriers imposed by jurisdictional lines in order to offer public services more efficiently.” City of Carmel v. Steele, 865 N.E.2d 612, 620 (Ind.2007). “The primary types of agreements are service contracts, under which one local government provides services to another, and joint enterprise contracts, under which two or more local units jointly undertake a project.” Id. Indiana Code Section 36-1-7-9 provides:

(a) This section may be used only for an agreement between an Indiana municipality and the executive of the county in which it is located concerning highway construction and maintenance and related matters.
(b) An agreement under this section must provide for the following:
(1) Its duration, which may not be more than four (4) years.
(2) The specific functions and services to be performed or furnished by the county on behalf of the municipality.
In addition, such an agreement may provide for any other appropriate matters.
(c) An agreement under this section may provide for either of the following:
(1) A stipulation that distributions from the motor vehicle highway account under IC 8-14-1, the local road and street account under IC 8-14-2, or both, be made to the county rather than to the municipality.
(2) A stipulation that the municipality will appropriate a specified part of those distributions for purposes listed in the agreement.

(Emphasis added).

Hutchinson argues that comparing the City’s obligations with the County’s obligations in the Agreement leaves no doubt that the City had all of the obligations and the County had none. According to Hutchinson, Indiana Code Section 36-1-7-9(b)(2) “requires County functions and services to be specifically provided in Interlocal Agreements.” Appellant’s Br. p. 16. Hutchinson concludes that the lack of specific functions and services to be performed by the County on behalf of the City renders the Agreement invalid.

“In applying a statute, our primary goal is to ascertain and give effect to the Legislature’s intent.” Crowel v. Marshall County Drainage Bd., 971 N.E.2d 638, 645 (Ind.2012). The best indicator of legislative intent is the statutory language, and where the statute is clear and unambiguous, we apply it as drafted without resort to the nuanced principles of statutory interpretation. Id. at 646.

Our reading of the plain language of Indiana Code Section 36 — 1—7—9(b)(2) is that any such agreement must expressly list the specific functions and services to be performed or furnished by a county. We do not read this section as requiring a county to perform or furnish certain functions or services. Here, the Agreement specifically provides, “The County shall have no obligation for the Project other than to agree that the City is given the powers to and may perform the Project as set forth in Section One above.” App. p. 111. Thus, the Agreement does include a term detailing the specific functions and services to be performed or furnished by the County as required by Indiana Code Section 36 — 1—7—9(b) (2).

Further, we disagree with Hutchinson’s assertion that there is not any real exchange of promises. By the express terms of the agreement, the County was required to give the City the authority to perform the project, including on land within the County’s boundaries. In other words, the County gave up its right to oversee the project. Without more, Hutchinson has not established that the Agreement is invalid.

Conclusion

The trial court properly dismissed the City’s counterclaim without prejudice. The trial court also properly determined that the Agreement was valid. We affirm.

Affirmed.

NAJAM, J., and BAILEY, J., concur.

      . The declaratory judgment action named several City and County entities. Because the City is the only named party on appeal, we refer to them collectively as the City for purposes of this litigation.

      . In making this argument, Hutchinson seems to equate a final judgment with a decision on the merits. Not all final judgments, however, are adjudications on the merits. See, e.g., Thacker v. Bartlett, 785 N.E.2d 621 (Ind.Ct.App.2003) (acknowledging that, although the dismissal of plaintiff’s original complaint under Trial Rule 12(B)(6) constituted a final judgment, it did not operate as an adjudication on the merits).

      . Hutchinson’s description of the July 25, 2012 hearing is received with caution because much of Hutchinson’s evidence focused on the valuation of the property and was not relevant to the issue of whether the City provided him with an appraisal.


text:
    In the Matter of Octavia E. SNULLIGAN, Respondent.
    No. 49S00-1107-DI-462.
    Supreme Court of Indiana.
    May 13, 2013.
   PUBLISHED ORDER FINDING MISCONDUCT AND IMPOSING DISCIPLINE

Upon review of the report of the hearing officer, the Honorable Thomas K. Milligan, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action,” and the briefs of the parties, the Court finds that Respondent engaged in professional misconduct and imposes discipline on Respondent.

Facts: On or about August 13, 2007, “CW” was charged by the State of Indiana with Dealing Cocaine as a class A felony and Possession of Cocaine as a class C felony, but he was not immediately arrested. On December 12, 2007, CWs’ mother and her husband (“the Family”), met with Respondent to discuss her representation of CW. Respondent quoted the Family a flat fee of $12,000 for the case. The parties agreed that $6,000 should be paid “up front.” Respondent asserts that she immediately began research on wiretap issues and other aspects of the case. The hearing officer stated that the evidence was insufficient for him to evaluate, quantify or judge the work performed by Respondent during this period.

On January 16, 2008, the parties were able to make arrangements to surrender CW. Also on January 16, the Family sent Respondent a letter terminating her services, requesting an itemization of services performed and requesting a refund of the unused fees paid in advance. On January 17, 2008, replacement counsel filed his appearance for CW.

Respondent did not keep any contemporaneous records of the work she did on the case. In response to the Family’s request for a breakdown of the services performed, Respondent prepared a document headed “Invoice” under the date of February 12, 2008. The Invoice purports to bill at the rate of $175 per hour for 37.8 hours, and shows a balance due of $715. The Invoice lists undated 32 entries, 28 of which were shown as “Document Review.” By Respondent’s own testimony, the listing is incomplete. The hearing officer found Respondent’s attempt to reconstruct time records for the representation to be unreliable. The hearing officer found that Respondent actually did little work of actual benefit on CW’s case and should refund the Family at least $5,000.

A fact in mitigation is Respondent’s lack of prior discipline. A fact in aggravation is the hearing officer’s finding that the Invoice was calculated to mislead the Family, the Commission, and the Hearing Officer.

Respondent filed a petition for review contesting a number of the hearing officer’s findings of fact. However, she failed to file with her petition “a record of all the evidence before the hearing officer relating to” the factual disputes, as required by Admis. Disc. R. 23(15)(b). Without a record, the Court is unable to evaluate her challenges to the hearing officer’s findings of fact.

Violation: The Commission charged Respondent with violating these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.5(a): Collecting an unreasonable fee.
1.16(d): Failure to refund an unearned fee upon termination of representation.

There are no findings that support a conclusion that Respondent’s $12,000 total fee or her collection of $6,000 of that fee before she was terminated would have been unreasonable if Respondent had been permitted to complete the representation. The findings, however, support a conclusion that Respondent violated Rule 1.16(d) by failing to refund the unearned part of the $6,000 after she was terminated, which we find to be $5,000 based on the hearing officer’s findings.

Discipline: For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 30 days, without automatic reinstatement, effective the date of this order. Respondent is already under a suspension for noncooperation with the Commission under Cause No. 49S00-1301-DI-55. Respondent shall fulfill all the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, cures any other outstanding suspensions, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4) and (18). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

Notwithstanding the above, however, at the conclusion of the 30-day minimum period of suspension, Respondent may petition this Court for immediate reinstatement to the practice of law in this state on the filing of proof that she has refunded to the Family the $5,000 in unearned fees she received, provided there are no other suspensions then in effect. See Admis. Disc. R. 23(4)(d) (Court may provide for reinstatement conditioned only on submission of proof of compliance with a requirement for reinstatement).

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


author: MASSA, Justice.

text:
    STATE of Indiana, Appellant (Intervenor below), v. John DOE, Appellee (Plaintiff below).
    No. 49S00-1201-CT-14.
    Supreme Court of Indiana.
    May 14, 2013.

      Gregory F. Zoeller, Attorney General of Indiana, Thomas M. Fisher, Solicitor General of Indiana, Heather Hagan McVeigh, Ashley Tatman Harwel, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellant.
    John C. Trimble, Richard K. Shoultz, Lewis S. Wooton, Indianapolis, IN, Attorneys for Amici Curiae Insurance Institute of Indiana, Inc., Indiana Manufacturers Association, and Indiana Chamber of Commerce, Inc.
    Patrick W. Noaker, St. Paul, MN, Eric A. Koch, Bloomington, IN, Attorneys for Appellee.
    Thomas A. Manges, Fort Wayne, IN, Attorney for Amicus Curiae Indiana Trial Lawyers Association.
   On Direct Appeal Pursuant to Indiana Appellate Rule 4(A)(1)(b)

MASSA, Justice.

The State here appeals from a judgment declaring Indiana Code §§ 34 — 51—3—4, -5, and -6 impermissibly inconsistent with Article 1, Section 20 and Article 3, Section 1 of our Indiana Constitution. We reverse.

Facts and Procedural History

A. Relevant Historical and Statutory Background

Punitive damages, sometimes known as “exemplary damages,” are “intended to punish and thereby deter blameworthy conduct.” Black’s Law Dictionary 448 (9th ed. 2009). They are an ancient remedy. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 491, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008) (citing Code of Hammurabi § 8, p. 13 (R. Harper ed. 1904) (authorizing a tenfold penalty for stealing the goat of a freed man); Statute of Gloucester, 1278, 6 Edw. I, ch. 5, 1 Stat. at Large 66 (permitting treble damages for waste)). Their place in American jurisprudence dates to 1763, when the Court of Common Pleas noted the possibility of damages “for more than the injury received.” Id. (citing Wilkes v. Wood, Lofft 1, 18, 98 Eng. Rep. 489, 498 (1763) (Lord Chief Justice Pratt) (awarding £4,000 in exemplary damages to plaintiff John Wilkes after the Secretary of State caused his papers to be searched unlawfully)). By 1837, they had reached Indiana, and as we said then:

The assessment of damages is a matter which must be, unavoidably, in a great measure left to the discretion of the jury. It is proper for them to take into consideration all the circumstances under which a trespass may have been committed; and wherever malice, insult, or deliberate oppression, has been an ingredient in the wrongful act, to award, in addition to the actual loss sustained, such exemplary damages as shall tend to prevent a repetition of the injury.

Anthony v. Gilbert, 4 Blackf. 348, 349 (Ind.1837).

But for nearly as long as we have had punitive damages in Indiana, we have recognized their controversial nature: “a principle that allows an individual to put the money assessed against another individual, as punishment or a warning example, into his private pocket when he is not entitled to it, whatever public advantages it may have, does not seem to be thoroughly sound.” Stewart v. Maddox, 63 Ind. 51, 57 (1878). Our Court of Appeals has imposed a requirement “that the amount of punitive damages awarded by a jury must bear some reasonable proportion to the amount of compensatory damages,” Bangert v. Hubbard, 127 Ind.App. 579, 589, 126 N.E.2d 778, 783 (1955), and our federal brethren have suggested that a proportion of more than nine to one may offend due process. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425, 123 S.Ct. 1513, 155 L.Ed.2d 585(2003).

Legislatures in other states, perhaps in response to similar concerns, began in the late 1980s to impose statutory caps on punitive damage awards. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 615-16, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) (Ginsburg, J., dissenting) (citing statutes from Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Kansas, Maryland, Minnesota, Nevada, New Jersey, North Dakota, Oklahoma, Texas, and Virginia). In 1995, our own General Assembly passed a law imposing certain restrictions on the recovery of punitive damages in civil cases. Ind. Code ch. 34-51-3 (2008 & Supp. 2012); Act of April 26, 1995, P.L. 278-1995, §§ 10-13, 1995 Ind. Acts 4058-59. In addition to modifying the burden of proof required to recover punitive damages, Ind.Code § 34-51-3-2 (2008), it provides that:

A punitive damage award may not be more than the greater of:
(1) three (3) times the amount of compensatory damages awarded in the action; or
(2) fifty thousand dollars ($50,000).

Ind.Code § 34-51-3^1 (2008). This cap is accompanied by an allocation provision:

(a) Except as provided in IC 13-25-4-10, when a finder of fact announces a verdict that includes a punitive damage award in a civil action, the party against whom the judgment was entered shall notify the office of the attorney general of the punitive damage award.
(b) When a punitive damage award is paid, the party against whom the judgment was entered shall pay the punitive damage award to the clerk of the court where the action is pending.
(c) Upon receiving the payment described in subsection (b), the clerk of the court shall:
(1) pay the person to whom punitive damages were awarded twenty-five percent (25%) of the punitive damage award; and
(2) pay the remaining seventy-five percent (75%) of the punitive damage award to the treasurer of state, who shall deposit the funds into the violent crime victims compensation fund established by IC 5-2-6.1 — 40.

Ind.Code § 84-51-3-6 (2008). The statute specifies that juries may not be apprised of the cap or the allocation. Ind.Code § 34-51-3-3 (2008). If a jury awards punitive damages in excess of the cap, the statute requires the court to reduce the award to the statutory maximum. Ind.Code § 34-51-3-5 (2008).

B. John Doe’s Lawsuit

In April 2008, a jury awarded John Doe $150,000 in punitive damages as part of a judgment in his lawsuit against Father Jonathan Lovill Stewart for childhood sexual abuse. Stewart moved to reduce the punitive damages pursuant to the statutory cap. Ind.Code §§ 34-51-3-4 & -5. On February 27, 2009, the trial court denied that motion, holding those statutes violated two provisions of our state Constitution: Article 3, Section 1, which requires the separation of governmental powers, and Article 1, Section 20, which guarantees the right to trial by jury in civil cases.

In March 2009, the State intervened in the case to protect its interest in the punitive damages award. Doe filed various documents contending the allocation provision was unconstitutional as applied to him. His argument was initially based solely on the state and federal Takings Clauses, although he later raised separation of powers and jury trial arguments.

On September 27, 2011, without holding a hearing on Doe’s constitutional claims or allowing the State to respond to his late-raised arguments, the trial court issued an order declaring both cap and allocation violated the separation of powers and right to jury trial. The State moved to correct error, seeking an opportunity to demonstrate the statutes comport with those constitutional provisions, but the trial court denied that motion.

The State now appeals. We have mandatory and exclusive jurisdiction over this and all appeals from judgments invalidating state statutes on constitutional grounds. Ind. Appellate Rule 4(A)(1)(b).

Standard of Review

The facial constitutionality of a state statute is a pure question of law, and we address it de novo. State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind.1997). We will declare a statute facially invalid only when we are firmly convinced there are no circumstances under which the statute could constitutionally be applied. Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind.1999). We are mindful of the legislature’s constitutional authority to determine the public policy of our state, and we thus will restrict our analysis to the constitutionality of the statute and refrain from evaluating its wisdom or suitability. State v. Rendleman, 603 N.E.2d 1333, 1334 (Ind.1992); Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 381, 404 N.E.2d 585, 591 (1980). “[E]very statute stands before us clothed with the presumption of constitutionality, and such presumption continues until clearly overcome by a showing to the contrary.” Rendleman, 603 N.E.2d at 1334 (quoting Sidle v. Majors, 264 Ind. 206, 209, 341 N.E.2d 763, 766 (1976)). The burden to make that showing rests squarely on the challenging party. Id.

The Cap and Allocation Scheme Does Not Infringe Upon the Right to Jury Trial

In support of the constitutionality of the cap and allocation scheme, the State argues punitive damages are a legal remedy and thus beyond the scope of the jury’s fact-finding function. By way of rejoinder, Doe asserts the right to jury trial applies to all common law causes of action and damages, and plaintiffs have a common law right to recover punitive damages under appropriate circumstances.

Although the particular issue raised in this appeal is novel, this is not the first time we have weighed the validity of a statutory cap on damages against a constitutional challenge based on the right to jury trial. Johnson, 273 Ind. at 400-01, 404 N.E.2d at 602. We upheld that cap, imposed on compensatory damages in medical malpractice cases, saying “there is no indication ... that the right to have a jury assess the damages in a case properly tried by jury constitutes a limitation upon the authority of the Legislature to set limits upon damages.” Id. at 400-01, 404 N.E.2d at 602. We noted further that the cap limited recoveries, but subject to that limit, “the right to have the jury assess the damages is available. No more is required by Art. I, § 20, of the Indiana Constitution in this context.” Id. at 400-01, 404 N.E.2d at 602.

Nor is this the first time we have had occasion generally to address the constitutionality of the allocation provision of the punitive damages statute. In 2003, we considered whether that provision violated the state and federal Takings Clauses. Cheatham v. Pohle, 789 N.E.2d 467, 473 (Ind.2003). Finding it did not, we said “consistent with their punitive nature, punitive damages are akin to a fine exacted by the government of Indiana to deter and punish wrongdoers. Requiring payment of this fine to a victim compensation fund rather than awarding it to a private citizen is well within the state legislature’s authority.” Id. at 475.

Taken together, these two precedent cases require us to uphold both the cap and allocation provisions at issue here. Doe has offered no meaningful reason, and we can conceive none, why a punitive damages cap is so materially different from a compensatory damages cap as to render the former unconstitutional when the latter is not. Rather, we agree with the State that, as we have said before, the jury’s determination of the amount of punitive damages is not the sort of “finding of fact” that implicates the right to jury trial under our state constitution. Stroud v. Lints, 790 N.E.2d 440, 445 (Ind.2003). We believe the allocation of punitive damages is similarly not a “finding of fact” for constitutional purposes. Therefore, we find the cap and allocation provisions are fully consonant with the right to jury trial protected by Article 1, Section 20 of our state constitution.

The Cap Does Not Offend the Separation of Powers

The State maintains that, although the courts have the power to punish quasi-criminal conduct through the imposition of punitive damages, the legislature has the authority to delineate the boundaries of that judicial power. Doe contends the judiciary has the sole power to modify excessive verdicts through the procedural device of remittitur, and that any legislative foray into that arena is therefore unconstitutional.

“The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial: and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.” Ind. Const, art. 3, § 1. This doctrine of separation of powers “is the keystone of our form of government,” Book v. State Office Bldg. Comm’n, 238 Ind. 120, 159, 149 N.E.2d 273, 293 (1958), and it “recognizes that each branch of the government has specific duties and powers that may not be usurped or infringed upon by the other branches of government.” State v. Monfort, 723 N.E.2d 407, 411 (Ind.2000). In the criminal context, for example, the legislative branch is charged with defining crimes and establishing penalties generally, while the judicial branch is charged with applying those general guidelines to the conviction and sentencing of particular offenders. Lemmon v. Harris, 949 N.E.2d 803, 814 (Ind.2011) (citing State v. Palmer, 270 Ind. 493, 497, 386 N.E.2d 946, 949 (1979); Ind.Code § 35-50-1-1 (2008)).

We believe this same separation applies in the context of civil litigation. Just as the legislative branch has broad power to limit common law causes of action and remedies, including punitive damages, see Cheatham v. Pohle, 789 N.E.2d 467, 471 (Ind.2003), the judicial branch has sole authority to apply those limitations to particular cases. The cap is a public policy judgment that punitive damages in civil cases should not exceed a certain amount. As such, it is no different from a public policy judgment that the penalty for Class C felony child molesting, for example, is imprisonment for between two and eight years. Ind.Code §§ 35-50-2-6(a) (2008) (setting the advisory sentence for a Class C felony); 35-42^4-3(b) (2008) (defining Class C felony child molesting). If an offender is convicted of child molesting, the court has absolute discretion to set the offender’s punishment — so long as it exercises that discretion within the statutorily-mandated range of two to eight years. Just so here; the legislative branch imposed a cap on the amount of punitive damages that a jury may award, and it provided that 75% of those damages would be allocated to the VCF. The trial court had absolute discretion to award damages as it saw fit — provided the award fit within those statutory parameters. Article 3, Section 1 of our Constitution demands nothing more.

Finally, we do not find persuasive Doe’s argument that the cap and allocation provision constitute a “legislative remitti-tur.” Remittitur is “[a]n order awarding a new trial, or a damages amount lower than that awarded by the jury, and requiring the plaintiff to choose between those alternatives.” Black’s Law Dictionary 1409 (9th ed. 2009). Indiana trial courts have the power to order remittitur upon motion of a party to correct error. Ind. Trial Rule 59(J)(5). The cap is not a remittitur, as it does not require a plaintiff to choose between a reduced damages award and a new trial, nor does it depend upon the presence of some error in need of correction. Nor is the allocation provision a remittitur; it does not change the amount of the damage award at all. Rather, both cap and allocation delineate a boundary within which the court may exercise its discretion to award damages, order remit-titur, or otherwise modify the judgment as appropriate in light of the evidence and circumstances of the particular case before it. That boundary is within the legislature’s power to set, and the exercise of that power does not offend Article 3, Section 1 of our Indiana Constitution.

Conclusion

We hold that Indiana Code §§ 34-51-3-4, -5, and -6 do not violate either Article 1, Section 20 or Article 3, Section 1 of our Indiana Constitution. We therefore reverse the trial court and remand this case with instructions to (1) grant Stewart’s motion to reduce the punitive damages to the statutory maximum and (2) order that 75% of the award be deposited into the Violent Crime Victim Compensation Fund.

DICKSON, C.J., RUCKER, DAVID, and RUSH, JJ., concur.

      . We note the trial court characterized our opinion in Johnson as a "narrow” "one-paragraph discussion” in which we "failed to conduct” the necessary historical analysis. App. at 15-16. To the extent that this language was intended as an invitation to reconsider Johnson, we decline.


text:
    In the Matter of Lisa M. CRAWFORD, Respondent.
    No. 71S00-1302-DI-153.
    Supreme Court of Indiana.
    May 16, 2013.
   PUBLISHED ORDER IMPOSING RECIPROCAL DISCIPLINE

The Indiana Supreme Court Disciplinary Commission filed a “Verified Notice of Foreign Discipline and Petition for Issuance of an Order to Show Cause,” advising that Respondent was disciplined by the State of Illinois and requesting, pursuant to Indiana Admission and Discipline Rule 23(28), that reciprocal discipline be imposed in this state. On March 5, 2013, this Court issued an “Order to Show Cause,” to which Respondent has not responded.

Respondent was admitted to practice law in Indiana and in Illinois. On January 18, 2013, the Supreme Court of Illinois found Respondent’s conduct violated that jurisdiction’s rules of professional conduct. For this misconduct, Respondent was suspended from the practice of law in Illinois for six months, effective February 8, 2013.

The Court finds that there has been no showing, pursuant to Admission and Discipline Rule 23(28)(c), of any reason why reciprocal discipline should not issue in this state.

Being duly advised, the Court orders Respondent suspended indefinitely from the practice of law in this state as of the date of this order. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed against Respondent.

If Respondent is reinstated to practice in Illinois, Respondent may file a “Motion for Reinstatement” pursuant to and in full compliance with Admission and Discipline Rule 23(28)(e), provided there is no other suspension order in effect.

The Clerk of this Court is directed to forward notice of this Order to Respondent or Respondent’s attorney, to the Indiana Supreme Court Disciplinary Commission, to the Supreme Court of Illinois, to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.