CADDNAR

[CITE: Miller, Trustee v. Miller, et al. 10 CADDNAR 68 (2005)]

PART 1. MOTION BY MARK A MORIN LOGGING, INC. AND MARK A. MORIN'S FOR LEAVE TO WITHDRAW DEEMED ADMISSIONS AND TO SUBMIT AMENDED RESPONSES TO REQUESTS FOR ADMISSIONS

On March 17, 2005, the "Defendant, Mark A. Morin Logging, Inc. and Mark A. Morin's Motion for Leave to Withdraw Deemed Admissions and Submit Amended Responses to Requests for Admissions" was filed. On March 25, 2005, Daniel Ray Miller, Trustee for the Miller Family Real Estate Trust, filed his "Objections to Morin Respondents' Motion to Withdraw Admissions". On March 29, 2005, the Administrative Law Judge filed an "Entry with Respect to Defendant, Mark A. Morin Logging, Inc. and Mark A. Morin's Motion for Leave to Withdraw Deemed Admissions and Submit Amended Responses to Requests for Admissions". On March 31, 2005, the "Claimant's Response to Entry Regarding Admissions" was filed. On April 11, 2005, the "Defendant's Response to Entry of March 29, 2005" was filed on behalf of Mark A. Morin, Inc. and Mark A. Morin individually.

Trial Rule 26 through Trial Rule 37 governs depositions and discovery. When an adjudicatory hearing, including a hearing in a proceeding subject to judicial review, "is held by or before an administrative agency, any party to that adjudicatory hearing shall be entitled to use the discovery provisions of Rules 26 through 37 of the Indiana Rules of Trial Procedure." Trial Rule 28(F). The instant adjudicatory proceeding is conducted under IC 4-21.5 (sometimes referred to as the "Administrative Orders and Procedures Act" or "AOPA") and is subject to judicial review. IC 4-21.5-5. AOPA specifically anticipates application of the Trial Rules pertaining to depositions and discovery. Illustrative is IC 4-21.5-3-23(b). In addition, the Natural Resources Commission has provided by rule that unless otherwise inconsistent with AOPA, or rules adopted at 312 IAC

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3-1 to help administer AOPA, an administrative law judge may apply the Trial Rules. 312 IAC 3-1-10. Trial Rule 26 through Trial Rule 37 applies to the instant proceeding.

Included among the Trial Rules governing depositions and discovery is Trial Rule 36 that applies to requests for admissions. Trial Rule 36 applies here. Responsibilities for the management of discovery, including those pertaining to requests for admissions, that fall to a trial court in a civil action generally fall to the administrative law judge to an adjudicatory proceeding under AOPA.

In 1991, the Indiana Supreme Court rendered a landmark decision regarding the scope and use of requests for admissions under Trial Rule 36 in , 573 N.E.2d 885 (Ind. 1991). "Decisions of the Court of Appeals are in conflict on these issues. We grant transfer to provide guidance to the bench and bar." GMC at 886.

The Indiana Supreme Court stated:

Under T.R. 36(B) matters admitted are deemed "conclusively established" unless the trial court permits withdrawal or amendment of the admission. Like the identical language of the federal rule, the portion of our rule authorizing limited withdrawal or amendment is intended to avoid the binding effect of inadvertent admissions.

Although an admission should ordinarily be binding on the party who made it, there must be room in rare cases for a different result, as when an admission no longer is true because of changed circumstances or through honest error a party has made an improvident admission.

8 C. Wright & A. Miller, Federal Practice and Procedure [SECTION] 2264 (1970). However, as emphasized by the Advisory Committee Notes to the 1970 amendments to the federal rule:

Unless the party securing an admission can depend on its binding effect, he cannot safely avoid the expense of preparing to prove the very matters on which he has secured the admission, and the purpose of the rule is defeated.

48 F.R.D. at 534.

GMC at 889.

Our state Supreme Court made clear that a trial court (or an administrative law judge in an adjudicatory proceeding) should not routinely authorize the withdrawal of admissions. Only in "rare cases" should withdrawal be authorized, as where there are "changed circumstances" or there was "an improvident admission."

Additionally, the Indiana Supreme Court observed that Trial Rule 36(B) itself also limits the discretion to authorize a withdrawal of admissions. Withdrawal cannot be granted unless both of the following are demonstrated:

(1) The withdrawal or amendment would subserve[FOOTNOTE 1] the presentation on the merits.

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(2) Prejudice[FOOTNOTE 2] in maintaining the action or defense would not result to the party obtaining the admission.

"Even if both of these conditions are satisfied, the rule does not compel the trial court [or administrative law judge in an adjudicatory proceeding] to grant withdrawal or amendment. Rather, the rule states the court [or administrative law judge] 'may' then grant such request." GMC at 889.

In the instant proceeding, Daniel Ray Miller, Trustee, served requests for admission on December 2, 2004. Mark A. Morin Logging, Inc. and Mark A. Morin believed incorrectly, through inadvertence and miscalculation, the responses to the requests for admissions were not due until January 5, 2005. These parties engaged in settlement negotiations that ultimately proved unsuccessful. On March 7, 2005, they reported they were "not currently close to settlement." On the same day, the parties agreed then were ordered to comply with a schedule for the consideration of motions for summary judgment. Daniel Ray Miller, Trustee, was to file the initial motion by March 28, 2005. No relief was sought on March 7 with respect to discovery. "Report of Telephone Status Conference and Notice of Telephone Status Conference" (March 8, 2005). Not until March 17, 2005 did the Morin defendants seek relief from the Administrative Law Judge, with a copy of the proffered admissions ("Defendant, Mark A. Morin Logging, Inc. and Mark A. Morin's Response to Defendant's Request of Admissions") attached.

Our Indiana Supreme Court sent a clear message in GMC that time is of the essence in responding to requests for admissions. Only in "rare circumstances" may any relief be granted with respect to admissions. Both examples offered as qualified "rare circumstances" were for modifications to responses (changed circumstances or an improvident admission) and not for extensions of time where responses were not served. The apparent slowness by Daniel Ray Miller, Trustee, to reply to settlement initiatives is discomforting. Yet the discomfort is not believed sufficient to approve the relief sought in the "Defendant, Mark A. Morin Logging, Inc. and Mark A. Morin's Motion for Leave to Withdraw Deemed Admissions and Submit Amended Responses to Requests for Admissions." The record is unclear as to whether the withdrawal of the admissions would subserve the presentation on the merits. Daniel Ray Miller, Trustee would suffer some prejudice in the prosecution of his summary judgment motion. The instant action does not appear supportable as a rare circumstance in which relief can be granted. Consistently with the Indiana Supreme Court's guidance in GMC, the request by Mark A. Morin Logging, Inc. and Mark A. Morin, individually, must be and is denied.

PART 2. REAL PARTY IN INTEREST WITH RESPECT TO LUTHER K. MILLER

During a telephone status conference held on February 1, 2005, Lewellyn Pratt reported a Guardian had been appointed for Luther Miller. He indicated this status posed a challenge in responding to the requests for admissions made by Daniel Ray Miller, Trustee. No consensus was achieved among the parties, and no order sought from the Commission, although there was a suggestion during the February 1 conference that Luther Miller's Guardian might need to be joined as a party. "Report of Telephone Status Conference and Notice of Telephone Status Conference" (February 2, 2005).

On April 6, 2005, Lewellyn Pratt filed a "Request for Instruction" in which he related a history of animosity between Luther Miller and his son, Daniel Ray

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Miller. Pratt reflected that the Greene Circuit Court has now appointed the Bloomfield State Bank as the Guardian to manage the property of Luther K. Miller. "Since Luther [Miller] has been found incompetent to manage his affairs, [Pratt] doesn't believe that he can speak for him in answering discovery matters which Luther [Miller] doesn't understand."

On April 7, 2005, Daniel Ray Miller, Trustee, filed the "Claimant's Response to Respondent Luther Miller's Request for Instructions." In the response, he contended there was no provision in AOPA "that would allow for the Natural Resources Commission to give Respondent Luther K. Miller instructions as he has requested."

For the reasons described previously in this Entry, the Commission has the authority and the responsibility to address matters pertaining to discovery. As described previously, the authority applies to the requests for admissions at issue here.

In addition, the Commission has the authority and responsibility to render determinations concerning who is a real party in interest. For example, the Commission has determined the real party in interest in a claim under the Timber Buyer's Act was the trustee for a bankrupt estate and not the bankrupt individual. Cooley v. Sutton, d/b/a Sutton Logging and Fidelity and Deposit of Maryland, 7 Caddnar 121 (1996). More recently, the Commission substituted a condominium owners association for the owner of an individual condominium unit, in a pier placement dispute, where the association owned the common shoreline area and resulting riparian rights. Barbee Villa condominium Owners Assoc. v. Shrock, 10 Caddnar 23 (2005).

Even so, the Commission presumably is without jurisdiction to determine the competency of Luther Miller or the scope of his existing guardianship. The former authority rests with a circuit or superior court, and the Greene Circuit Court is appropriate to exercising the latter jurisdiction. The Bloomfield State Bank, serving in its fiduciary capacity as the Guardian for Luther Miller, may be the real party in interest for the instant proceeding, as opposed to Luther K. Miller, individually. If so, further action here is a futile exercise until the Bloomfield State Bank is made a party. If another guardianship is required for the person of Luther Miller, in addition to his property, direction may also be sought from the Greene Circuit Court. While for ethical and practical reasons the obvious candidate to seek this direction is Lewellyn Pratt, determining who speaks here for Luther Miller is in the interest of each of the parties.

Lewellyn Pratt is ordered to promptly obtain a disposition from a civil court of competent jurisdiction concerning whether Luther K. Miller may act in his individual capacity in this administrative proceeding or whether he must properly be represented by his Guardian, the Bloomfield State Bank, or by another guardian. In the absence of such a disposition, the Administrative Law Judge would act upon the proposition that Pratt may properly represent Luther K. Miller, individually, and without a guardian.

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PART 3. NOTICE OF RIPENESS FOR IMMEDIATE JUDICIAL REVIEW

The second paragraph of Trial Rule 28(F) provides that protective and other orders shall be obtained first from the administrative agency. The Administrative Law Judge has rendered an order in Part 1 of this Entry that Mark A. Morin Logging, Inc. and Mark A. Morin, individually, are not entitled to relief from their failure to timely file responses to the Claimant's requests for admissions. TR 28(F) also specifies in the second paragraph that "if enforcement or such orders or right of discovery is necessary, it may be obtained by a court of general jurisdiction where discovery is being made or sought, or where the hearing[FOOTNOTE 3] is being held." Harmoniously with TR 28(F), this agency order is certified as being immediately ripe for judicial review. Doing so is also supportive of administrative efficiency. If the Administrative Law Judge has erred in rendering the order in Part 1, all subsequent actions in the proceeding are likely to be misdirected and subject to reversal.

Also, this agency order is certified as being immediately ripe for judicial review with respect to the order in Part 2 of this Entry. A party that believes it is aggrieved by this order shall seek administrative review from the Greene Circuit Court or from another court of preferred venue and competent jurisdiction.

If no party takes timely judicial review of this Entry, the orders contained in Part 1 and Part 2 shall be deemed res judicata for all purposes in this proceeding.

A person who wishes to seek judicial review of either Part 1 or Part 2 of this Entry must file a petition for judicial review in an appropriate court within 30 days of this notice and must otherwise comply with IC 4-21.5-5. Service of a petition for judicial review is also governed by 312 IAC 3-1-18.

["PART 4. "EXTENSION OF TIME WITH RESPECT TO SUMMARY JUDGMENT" IS OMITTED.]

FOOTNOTES:

1. In this context, "subserve" means to promote the betterment or effectiveness. Webster's Third New International Dictionary of the English Language Unabridged (1961), p. 2279.

2. "Prejudice" to a party who has obtained admissions, which the admitting party is seeking to withdraw, does not mean that the obtaining party would lose the admissions. "Prejudice" means the obtaining party has suffered a detriment in the preparation of the case. City of Muncie v. Peters, 709 N.E.2d 50 (Ind. App. 1999), rehearing and transfer denied.

3. Pursuant to 312 IAC 14-6-5(b), the location where a hearing under the Timber Buyer's Act would be held is the "region" where either the majority of the parties reside or are domiciled or where the subject property is located. "Region" has traditionally been construed in this context as either the county of the parties' residence or domicile or where the timber harvest takes place, or a county immediately contiguous to that county. In this instance, unless otherwise agreed by the parties, the hearing would likely be conducted in Greene County or a county immediately contiguous to Greene County.

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[GREENE CIRCUIT COURT ORDER]

The Petition to determine the competency of Luther K. Miller to Respond to Request for Admissions was filed in this cause on the 28th day of April 2005, and heard by this court on the 18th day of May 2005.

The following parties were present in person: Daniel M. Mills, attorney for Daniel Ray Miller, Trustee for the Miller Family Real Estate Trust, Daniel Ray Miller, Trustee for the Miller Family Real Estate Trust, Lewellyn H. Pratt, Attorney for Luther K. Miller, Karen R. Strueh, guardian ad litem of Luther K. Miller, and Luther K. Miller.

The Court heard argument from Daniel M. Mills, Lewellyn H. Pratt, and Karen R. Strueh, guardian ad litem of Luther K. Miller; no other evidence was presented.

There has been no evidence or argument presented in this matter which supports any change in the earlier findings by the court that Luther Miller is unable to maintain and care for his financial affairs and incapable of handling his property. The matter in litigation between the protected person and the Miller Family Real Estate Trust involves the property and financial affairs of Luther Miller.

Under I.C. 29-3-8-3, Bloomfield State Bank as the guardian of his property has the mandatory responsibilities to:

(1) Act as guardian with respect to the guardianship property and observe the standards of care and conduct applicable to trustees;
(2) Protect and preserve the property of the protected person subject to guardianship and secure the protective orders or other orders that are required to protect any other property of the protected person; and
(3) Conserve any property of the protected person in excess of the protected person's current needs.

It is therefore the finding of this court that Luther Miller is not legally competent to act in his individual capacity in the pending administrative proceedings before the Natural Resources Commission of the State of Indiana, and that the Bloomfield State Bank, as guardian of his estate, is responsible to act on his behalf in such proceedings.

IT IS SO ORDERED THIS 23 DAY OF MAY 2005.
DAVID K. JOHNSON, JUDGE
GREENE CIRCUIT COURT

________________________

[MARION SUPERIOR COURT ORDER]

MARION SUPERIOR COURT CIVIL DIVISION, ROOM ELEVEN, CAUSE NO. 49D11-0505-CT-18941

Comes now the Court, and, this matter having come before the Court on Petitioners’ Petition for Judicial Review filed with the Court on May 11, 2005, and the parties by counsel, having submitted this matter to the Court for decision based on the Agreed Entry entered into by them, filed with and Approved by the Court on August 1, 2005, now the Court, being duly advised in the premises, pursuant to Trial Rule 52 (A) of the Indiana Rules of Trial Procedure, issues the following:

1) The Court has jurisdiction over the parties herein and the subject matter of this action.

2) The original cause was first filed before the Department of Natural Resources when the original plaintiff, Daniel Ray Miller, Trustee for the Miller Family Real Estate Trust filed a Complaint for Damages on November 1, 2004. The Petitioners were among the original parties named as Defendants in this cause.

3) On December 2, 2004, the Department of Natural Resources conducted a pre-hearing conference. The original Plaintiff appeared by counsel and the Petitioners herein also appeared for said conference.

4) On or about December 2, 2004, Plaintiff served Request for Admissions on the Petitioners.

5) The Petitioners did not timely respond to the Request for Admissions and said Requests were deemed admitted.

6) On March 17, 2005, Petitioners sought leave to withdraw previously deemed admissions. The original plaintiffs opposed Petitioners motion.

7) The issue before the administrative law judge (ALJ) was whether Petitioners should be permitted to withdraw admissions.

8) The parties were given the opportunity to argue and brief their positions before the ALJ.

9) On April 12, 2005, the ALJ issued a four-page decision in which he analyzed the application for the Indiana discovery rules to the facts of the case, applied the Indiana Supreme Court decision in GMC v. Aetna Cas. & Sur. Co., 573 N.E.2d 885 (Ind. 1991), and came to the conclusion that Petitioners would not be permitted to withdraw admissions.

10) On May 11, 2005, Petitioners perfected their Petition for Judicial Review.

11) By Agreed Entry entered into by the parties and Approved by this Court on August 1, 2005, the parties stipulated that the issue for review by this Court is: “Was the denial of the Administrative Law Judge in accordance with applicable laws or was it arbitrary, capricious or an abuse of discretion?”

12) The parties have fully briefed their positions in filings with the Court on August 29, 2005 and September 20, 2005, respectively.

CONCLUSIONS OF LAW

1) Wherever appropriate or necessary herein, the above-stated “Findings of Fact” shall be constructed and interpreted as “Conclusions of Law”.

2) This case is governed by the Administrative Orders and Procedures Act (“the Act”), I.C. 4-21.5-5-1 et seq. The Act delineates procedural requirements for judicial review as well as the scope of the trial court’s review of an administrative decision.

3) Upon judicial review, the reviewing court may not try this case de novo, I.C. 4-21.5-5-11.

4) The Court, if it finds that a person has been prejudiced by an agency action, may set aside that action only if the Court finds that the person seeking judicial relief has been prejudiced by an agency action that is:

(a) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law;
(b) contrary to constitutional right, power, privilege or immunity;
(c) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right;
(d) without observance of procedure required by law; or
(e) unsupported by substantial evidence, I.C. 4-21.5-5-14.

6) Trial Rule 36(B) of the Indiana Rules of Trial Procedure allows for a tribunal to permit withdrawal or amendment of admissions. The tribunal may permit withdrawal or amendment when presentation of merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the Court that the withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.

7) An arbitrary and capricious action is one constituting willful or unreasonable action, without consideration and in disregard of the facts and circumstances of the case or without some basis which would lead a reasonable and honest person to such action. Indiana Board of Pharmacy v. Crick. Ind. App., 433 N.E.2d 32,39 (1982).

8) There has been no showing that the decision of the ALJ was an abuse of discretion.

9) There has been no showing that the decision of the ALJ was arbitrary and capricious or contrary to law.

10) The decision of the ALJ is consistent with Trial Rule 36 and the law as declared by the Indiana Supreme Court.

11) The ALJ applied valid Indiana rules and law to the facts before him in arriving at his decision.

JUDGMENT IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the relief sought by the Petitioners is Denied and the decision of the Administrative Law Judge is Affirmed. ORDERED THIS 29TH DAY OF DECEMBER 2005