[CITE: DNR v. Cruse d/b/a Cruse Hardwoods, 14 CADDNAR 54 (2016)]
[VOLUME 14, PAGE 54]
Cause #: 12-105F
Caption: DNR v. Cruse d/b/a Cruse Hardwoods
Administrative Law Judge: Jensen
Attorneys: Boyko (DNR); Koch, II (Cruse)
Date: April 29, 2016
[See Editor’s note at end of this document regarding change in the decision’s original format.]
FINAL ORDER
42. The timber buyers license issued to Perry Cruse, identified as FTB000483, and the related agent registration issued to Perry Cruse, identified as FTA001005, are hereby revoked.
43. As prescribed at Indiana Code § 25-36.5-1-11, the Department shall not issue a timber buyers license or registration or agents license or registration to Cruse until Cruse has paid for all timber previously purchased and eliminated his default to the people of Indiana.
44. In the event Cruse eliminates his default to the people of Indiana, the Department’s maintains its discretionary authority under Indiana Code § 25-36.5-1-4.9 to refuse to issue a timber buyers license to Cruse.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Procedural History and Jurisdiction
1. On June 22, 2012, the Department of Natural Resources (Department) filed with the Natural Resources Commission (Commission) its “Complaint to Revoke Timber Buyers License and Agent Card” (Complaint) against Perry Cruse[1] (Cruse). Within its Complaint, the Department alleged that Cruse had failed to pay, as agreed, for timber purchased in violation of Indiana Code § 25-36.5-1-4(a). On August 20, 2012, the Department filed its “Amended Complaint to Revoke Timber Buyers License and Agent Card” (Amended Complaint) alleging, in addition to its June 22, 2012 allegations, that Cruse had filed bankruptcy seeking relief from payment of unsecured claims to additional timber growers from whom Cruse had purchased timber. The Department’s Amended Complaint identified additional occasions of Cruse’s alleged violation of Indiana Code § 25-36.5-1-4(a). Finally, on November 30, 2015, without objection from Cruse, the Department was granted leave to filed its “Second Amended Complaint to Revoke Timber Buyers License and Agent Card” (Second Amended Complaint), wherein the Department alleges, in addition to the allegations contained in its Amended Complaint, that Cruse was criminally charged on nine occasions associated with additional failures to pay for purchased timber.
2. The Department has been represented by counsel, Ihor Boyko, and Cruse has been represented by counsel, Glen E. Koch, II, throughout this proceeding.
3. The Department is the agency responsible for administering Indiana Code §§ 25-36.5, commonly referred to as the Timber Buyers Statute. Indiana Code § 25-36.5-1-2(a).
4. The Commission is the ultimate authority with respect to actions under the Timber Buyers Statute. 312 IAC 14-1-2.
5. Following participation in a prehearing conference and status conference conducted on July 18, 2012 and November 1, 2012, respectively, Cruse sought a stay of the proceedings in this administrative cause on the basis that “pending criminal matters will materially impair Perry Cruse’s ability to present a defense at the administrative hearing…” that had been scheduled for January 17, 2013.
6. Cruse’s motion to stay the instant proceeding was granted on January 14, 2013 on the condition that Cruse agree to an immediate suspension of his timber buyers license and agents card. See “Notice of Suspension of Timber License Along with Temporary Stay of Proceedings”.
7. This administrative cause was stayed until August 10, 2015. The administrative hearing was rescheduled for November 13, 2015 but was vacated upon motion of the Department to allow for the Department’s filing of its Second Amended Complaint and for the Department to file its motion for summary judgment. The Department’s motions were not objected to by Cruse.
8. The Commission has jurisdiction over the subject matter of this proceeding as well as the parties.
Summary Judgment Standard
9. Summary Judgment is governed by Indiana Code § 4-21.5-2-23, which specifies, with limited exceptions inapplicable to this proceeding, that “…an administrative law judge shall consider a motion filed … as would a court that is considering a motion for summary judgment filed under Trial Rule 56 of the Indiana Rules of Trial Procedure.”
10. Trial Rule 56 of the Indiana Rules of Trial Procedure (“TR 56”) provides that summary judgment should be granted if the evidentiary material shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Auto-Owners Insurance Co. v. United Farm Bureau Insurance Co., 560 N.E.2d 459 (Ind. Ct. App. 1990). “The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law.” Wells v. Hickman, 657 N.E.2d 172, 175 (Ind. Ct. App. 1995).
11. “A fact is ‘material’ for summary judgment purposes if it helps to prove or disprove an essential element… of” the proceeding. Graham v Vasil Management Co., Inc., 618 N.E.2d 1349 (Ind. Ct. App. 1993). “A factual issue is ‘genuine’ for purposes of summary judgment if the trier of fact is required to resolve an opposing party’s different versions of the underlying facts.” York v. Union Carbide Corp., 586 N.E.2d 861 (Ind. Ct. App. 1992).
12. Supporting and opposing summary judgment affidavits must present admissible evidence that follows substantially the same form as though the affiant were giving testimony in court. Capital Drywall Supply, Inc. v. Jai Jagdish, Inc., 934 N.E.2d 1193 (Ind. Ct. App. 2010).
13. Any doubt as to the existence of an issue of material fact, or an inference to be drawn from the facts, must be resolved in favor of the nonmoving party. Musgrave v. Squaw Creek Coal Co. and DNR, 12 CADDNAR 192, 197 (2009), citing Travelers Indem. Co. of America v. Jarrells, 906 N.E.2d 912, 915 (Ind. Ct. App. 2009).
14. A party moving for summary judgment has the burden of proof with respect to summary judgment, regardless of whether the party would have the burden in an evidentiary hearing. Regina Bieda v. B & R Development and DNR, 9 CADDNAR 1 (2001). See also, Jarboe v. Landmark Community Newspapers, 644 N.E.2d 118, 123 (Ind. 1994). “Once the movant has met this burden, an opposing party is obliged to disgorge sufficient evidence to show the existence of a genuine triable issue.” Cowe by Cowe v. Forum Groups, Inc., 575 N.E.2d 630, 633 (Ind. 1991).
Findings of Fact
15. Cruse provided no evidence whatsoever in opposition to the Department’s factual evidentiary submission. The Department’s evidence is therefore accepted as true.
[VOLUME 14, PAGE 55]
16. Perry Cruse, individually holds a timber buyer license identified as FTB000483 and a timber agent license identified as FTA001005. Exhibit 11.
17. Cruse Hardwoods, as a business entity, is not the holder of the timber buyers license or timber agents license at issue in this proceeding.
18. A Benton County Grand Jury indicted Cruse of two counts of theft, both Class D Felonies, for exerting control over “proceeds from the sale of timber…” on July 8, 2013. In the Benton County Circuit Court, Cause Number 04C01-1306-FD-120, Cruse entered a guilty plea to an amended count of “Timber Buyer Failure to Pay”, a Class A Misdemeanor, on February 18, 2014 and received a sentence of probation along with an order to pay $4,707.94 in restitution. Exhibit 1.
19. In the Dubois Superior Court, Cruse was charged with five criminal counts including one-Class D Felony, two-Class A Misdemeanors and two-Class B Misdemeanors involving his use of an unlicensed agent, the cutting of unpurchased timber and the failure to pay for purchased timber. These charges were dismissed, without prejudice, on October 23, 2013. The facts associated with these charges are contained within a sworn probably cause affidavit prepared by Conservation Officer Jonathan J. Watkins. Exhibit 2.
20. Cruse was charged with Theft, a Class D Felony, and with Violation of Timber Buyer Regulations, a Class A Misdemeanor, in Floyd Circuit Court, Cause Number 22C01-1301-FD-157 on January 24, 2013. The charges are supported by a sworn Affidavit for Probable Cause signed by Conservation Officer Kim Wolsifer (Wolsifer), which indicated the amount Cruse owed the timber grower was $12,000. Cruse pleaded guilty on October 24, 2013 to the charge of Violating Timber Buyer Regulations and received a one year suspended sentence. Exhibit 3.
21. In the Fountain Circuit Court, Cause Number 23C01-1208-FC-362, Cruse was charged with Corrupt Business Influence, a Class C Felony, and Theft, a Class D Felony, supported by the sworn Affidavit of Wolsifer filed August 22, 2012. The Affidavit states that Cruse owed the victim in that instance at least $30,000 for timber purchased in January 2011 and the Corrupt Business Influence charge was based on a pattern of similar criminal activity carried out by Cruse against six unrelated victims in five different Indiana counties. The records indicate that the charges against Cruse were dismissed 14 days before a scheduled trial after the “victim was made whole”. Exhibit 4.
22. On April 2, 2014, the Lawrence County Prosecutor’s Office charged Cruse with Corrupt Business Influence, a Class C Felony, and three separate counts of Theft, Class D Felonies, involving the theft of timber from four separate victims. The charges were supported by the report of Wolsifer and other Department witnesses. In the Lawrence Superior Court, Cause Number 47D01-1404-FC-452, Cruse pleaded guilty on February 9, 2014 to three amended counts of Failure to Pay for Timber as Agreed, Class A Misdemeanors, and received a one year suspended sentence with an order to pay restitution in varying amounts to three different victims. The restitution totaled $8,433.92. Exhibit 5.
23. On February 5, 2013, again on the sworn affidavit of Wolsifer, Cruse was charged with one count of Theft, a Class D Felony, in Monroe Circuit Court, Cause Number 53C02-1302-FD-000115, associated with his failure to pay $7,000 due to a timber grower. This charge was dismissed following Cruse’s payment of restitution. Exhibit 6.
24. On July 24, 2012, in the Montgomery Superior Court, Cause Number 54D01-1207-FD-002764, Cruse was charged with one count of Theft, a Class D Felony, and one count of Using an Unlicensed Agent to Purchase Timber, a Class A Misdemeanor. The charges were supported by the sworn affidavit of Wolsifer and involved Cruse’s failure to pay for purchased timber. The charges were dismissed on April 1, 2013 after Cruse paid restitution. Exhibit 7.
25. In the Morgan Superior Court, Cause Number 55D03-1312-FC-1588, Cruse was charged on December 3, 2013 with one count of Corrupt Business Influence, Class C Felony, one count of Theft, Class D Felony, and one count of Failure to Pay for Timber, Class A Misdemeanor. The supporting investigation, conducted by Wolsifer specifies that the charges relate to Cruse exerting control over timber for which he failed to pay and identifies 10 additional landowners Cruse has failed to pay following timber harvests in eight additional Indiana counties. Cruse pleaded guilty to Failure to Pay for Timber and received a one year suspended sentence with an order to pay restitution to one victim in the amount of $61,169.58. Exhibit 8.
26. Cruse was also charged with one count of Theft, Class D Felony, and three counts of Acting as a Timber Buyer without a License, Class B Misdemeanors, on February 28, 2013 in Parke Circuit Court, Cause Number 61C01-1302-FD-000052. Specific details are not available within the evidence submitted but the type of charges filed reflect that they relate to Cruse’s timber buying activities. Ultimately, the charges were dismissed on June 18, 2013 for reasons that are not specified. Exhibit 9.
27. A civil judgment was entered against Cruse by the Warren Circuit Court, Cause Number 86C01-1112-SC-000043, in the amount of $5,000 associated with Cruse’s failure to pay for timber harvested in the summer of 2010. Presently, the judgment is being paid by a Chapter 13 bankruptcy trustee in small monthly amounts with a remaining balance of $2,222.38 as of December 26, 2015. Exhibit 10, Affidavit of Gerald Morgan.
Conclusions of Law
28. Since July 28, 1972, persons have been prohibited from engaging in “the business of timber buying in the state of Indiana without a registration certificate issued by the Department.” Indiana Code § 25-36.5-1-2.
29. According to Indiana Code § 25-36.5-1-12, “the Department may, after notice and a hearing, revoke the registration certificate or license of any person who violates any of the provisions of this chapter. All proceedings under this chapter to revoke a license shall be conducted in the manner prescribed by IC 4-21.5.3.”
30. One type violation that may occur under the Timber Buyers Statute involves a timber buyer’s failure to pay for timber purchased. Indiana Code § 25-36.5-1-4.
31. Further bases for revoking a timber buyers license are provided in Indiana Code § 25-36.5-1-16:
Sec. 16. The director may revoke or suspend or refuse to issue any
license or agent's registration under that license if the applicant or
holder of that license has:
(1) been convicted of a felony;
(2) violated any provision of this chapter; or
(3) violated any rule or regulation of the department promulgated
under this chapter….
(emphasis added).
[VOLUME 14, PAGE 56]
32. In addition to revoking an existing timber buyers license, the Department is authorized to:
Sec. 4.9. … refuse to issue a timber buyer registration certificate to an applicant that has:
…
(2) violated a provision of this chapter; or
(3) violated a rule adopted by the department under this chapter.
Indiana Code § 25-36.5-1-4.9.
33. A “timber buyer” is a “person engaged in the business of buying timber from timber growers for sawing into lumber, processing, or resale, but does not include a person who occasionally purchases timber for sawing or processing for his own use and not for resale.” Indiana Code § 25-36.5-1-1.
34. The evidence substantiates that Cruse, a holder of Timber Buyers License FTB000483 and a timber agent license identified as FTA001005, is a timber buyer.
35. The evidence substantiates that Cruse was charged with 25 crimes involving numerous victims across multiple Indiana counties to whom he failed to pay amounts due for timber purchased. Exhibits 1 through 10.
36. The evidence further substantiates that Cruse failed to pay additional individuals monetary sums for timber purchased in instances that did not result in criminal charges actually being filed. See Exhibit 8.
37. "A valid guilty plea is a confession of guilt made directly to a judicial officer and necessarily admits the incriminating facts alleged." McWhorter v. State, 945 N.E.2d 1271, 1273 (Ind. Ct. App. 2011) trans. denied. See also, Doan v. State, No. 02A03-1408-CR-302 (Ind. Ct. App. Apr. 20, 2015).
38. Cruse confessed, by virtue of guilty pleas entered, that he violated Indiana Code § 25-36.5-1-4 on five occasions by failing to pay for purchased timber.
a. In Benton Circuit Court on February 19, 2014 Cruse admitted committing the crime of Failure to Pay for Timber, a Class A Misdemeanor. Exhibit 1.
b. Cruse admitted in a plea agreement signed on February 9, 2014 that he three times, with respect to three separate victims, committed Failure to Pay for Timber as Agreed, Class A Misdemeanor. Exhibit 5.
c. Cruse, through a plea agreement signed on December 15, 2014, was convicted of Failure to Pay for Timber as Agreed, Class A Misdemeanor, in the Morgan Superior Court. Exhibit 8.
39. The records filed in State of Indiana v. Perry Cruse, Cause Number 23C01-1208-FC-362, in the Fountain Circuit Court reflects that Cruse had failed to pay $30,000 for timber purchased and cut in January 2011 until after criminal charges were filed on August 22, 2012 and a trial was scheduled for July 29, 2013. The Motion to Dismiss, being filed on July 15, 2013, provides for the reasonable conclusion that Cruse continued to fail to pay for the purchased timber for nearly one year after being charged with a crime to avoid the impending trial. Exhibit 4. On three additional occasions Cruse failed to pay for timber purchased until after criminal charges were filed. Exhibits 5, 6, & 7.
40. Cruse was convicted by virtue of a plea agreement of “Violation of Timber Buyer Regulations, Class A Misdemeanor, I.C. 25-36.5-1-10”, in the Floyd Circuit Court on October 24, 2013. Exhibit 3. Again, by his own confession, Cruse committed a violation of the Timber Buyers Statute, Indiana Code §§ 25-36.5.
41. Furthermore, Cruse presented no evidence in dispute of the content of the sworn probable cause affidavits accompanying any of the criminal proceedings identified in the Department’s evidence. For that reason, the content of those sworn affidavits is taken as true with respect to each and every incident, whether charged or uncharged, and regardless of conviction. A non-exclusive listing of violations committed by Cruse include additional occasions Cruse failed to pay for timber as well as the use of unlicensed agents, which is a violations of Indiana Code § 25-36.5-1-15.
[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been modified to correspond with CADDNAR format. The Final Order, Paragraphs 42 through 44, has been relocated to the “Final Order” section at the beginning of this document.]
[1] The Department’s Complaint names Perry Cruse d/b/a Cruse Hardwoods but the Department later acknowledged that the timber buyers license and agent card at issue was issued to Perry Cruse in his individual capacity.