Commissioner, Indiana Department of Insurance v. Donald L. Emry (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 25, 2018
• Docket: 32A05-1712-PL-2996
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Apr 25 2018, 9:43 am the defense of res judicata, collateral estoppel, or the law of the case. CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Curtis T. Hill, Jr. J. Kirk LeBlanc Attorney General of Indiana LeBlanc Nettles Davis Brownsburg, Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Commissioner, Indiana April 25, 2018 Department of Insurance, Court of Appeals Case No. Appellant-Respondent, 32A05-1712-PL-2996 Appeal from the Hendricks v. Superior Court The Honorable Rhett M. Stuard, Donald L. Emry, Judge Appellee-Petitioner. Trial Court Cause No. 32D02-1703-PL-29

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 32A05-1712-PL-2996 | April 25, 2018 Page 1 of 6 Case Summary [1] On September 20, 2016, the Commissioner for the Indiana Department of

Insurance (“the Commissioner”) determined that Donald Emry’s insurance

producer’s license (“license”) should be suspended after Emry demonstrated

untrustworthiness and inappropriate behavior toward Indiana Department of

Insurance (“the Department”) staff. An administrative law judge (“ALJ”)

upheld the Commissioner’s decision on December 16, 2017. Emry sought

judicial review by the trial court. Following a hearing, the trial court found that

the evidence was insufficient to sustain the agency’s decision. The

Commissioner appealed the trial court’s decision. Because we conclude that

the evidence was sufficient to sustain the agency’s decision, we reverse the

decision of the trial court and reinstate the suspension of Emry’s license.

Facts and Procedural History [2] On July 25, 2016, Emry visited the Department to pay the fees required for the

renewal of his license. Department employee Megan Canfield assisted Emry

with the renewal of his license. After Canfield accepted Emry’s payment, he

“seemed to get upset” when she asked if he had completed the required

continuing education. Appellant’s App. Vol. II, p. 132. Emry hit Canfield

twice on the left arm with his right hand. Afterward, Canfield asked co-worker

Laurie Shook to accompany her as she spoke with Emry because she did not

want to be alone with him. Shook observed that Emry had seemed angry and

upset during his interaction with Canfield.

Court of Appeals of Indiana | Memorandum Decision 32A05-1712-PL-2996 | April 25, 2018 Page 2 of 6 [3] Canfield reported the altercation to Charles Herndon, the director of insurance

fraud investigations and head of security for the Department. Herndon

reviewed security video of Canfield’s interactions with Emry and, while he

could not see Emry strike Canfield when he reviewed the video because of the

placement of the camera, he did observe Emry’s hand move twice in a manner

consistent with Canfield’s allegations.

[4] On July 26, 2016, the Commissioner issued an emergency order in which it

found that Emry had “struck Canfield in the arm twice” and concluded that

“[s]triking a Department employee demonstrates untrustworthiness and

inappropriate behavior toward Department staff, such that a suspension of

Emry’s license is appropriate.” Appellant’s App. Vol. II, pp. 24, 25. As a

result, he determined that Emry’s license should be “immediately suspended for

ninety (90) days” and “[a] hearing shall be held within ninety (90) days to

determine whether Emry’s [license] should be permanently revoked.”

Appellant’s App. Vol. II, p. 25.

[5] An administrative hearing was conducted on August 10, 2016, after which the

ALJ issued an order finding that Emry’s license should be suspended. On

September 20, 2016, the Commissioner entered a final order that upheld the

emergency order and continued the suspension of Emry’s license.

[6] A second administrative hearing was conducted on November 16, 2016. The

ALJ issued an order on December 16, 2016, in which it found that

Court of Appeals of Indiana | Memorandum Decision 32A05-1712-PL-2996 | April 25, 2018 Page 3 of 6 Emry struck [Canfield] twice on her forearm causing pain, fear and apprehension. The lobby video footage was primarily blocked from view by [Canfield’s] body; however, it appeared that [Emry’s] right hand and forearm moved in a motion that could be interpreted as a hand strike as described by [Canfield].

Appellant’s App. Vol. II, p. 35. The ALJ recommended that (1) Emry’s license

be suspended for two years and (2) Emry “should be fined in an amount that

the [Commissioner] would find appropriate under the circumstances.”

Appellant’s App. Vol. II, p. 37. The Commissioner entered a final order on

February 1, 2017, in which it suspended Emry’s license “for a period of two (2)

years from the date of the Emergency Order, July 26, 2016[,]” and ordered that

Emry “may reapply after the elapse of the (2) year suspension if [he] has

successfully completed a Department approved anger management course.”

Appellant’s App. Vol. II, p. 21.

[7] On March 2, 2017, Emry filed a petition for judicial review. Following a

hearing, the trial court found that the evidence was insufficient to sustain the

agency’s decision. The trial court overturned the suspension and ordered that

Emry’s license be reinstated.

Discussion and Decision [8] The Commissioner contends that the trial court erred in reversing the agency’s

decision. “When reviewing the decision of an administrative agency, we are

bound by the same standard of review as the trial court.” Andrianova v. Ind.

Family & Soc. Servs. Admin., 799 N.E.2d 5, 7 (Ind. Ct. App. 2003).

Court of Appeals of Indiana | Memorandum Decision 32A05-1712-PL-2996 | April 25, 2018 Page 4 of 6 We will reverse an administrative decision only if it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to a 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.

Id. (internal citation and quotations omitted).

[9] “When reviewing an administrative agency’s decision, the trial court may not

try the facts de novo or supplant the agency’s judgment with its own.” Id.

“Neither the trial court nor this court may reweigh the evidence or reassess

witness credibility.” Id. “Rather, reviewing courts must accept the facts as

found by the agency factfinder.” Id. at 7–8. “The party seeking judicial review

bears the burden of demonstrating that the agency’s action is invalid.” Id. at 8.

[10] The facts most favorable to the agency’s decision are sufficient to sustain the

decision. Canfield testified that Emry struck her twice on the arm. Shook

observed that Emry seemed angry and upset. Upon reviewing video of the

Canfield’s interaction with Emry, Herndon observed Emry’s hand move twice

in a manner consistent with Canfield’s allegations. Specifically, Herndon

observed Emry’s “hand come up and go down sharply and then his hand

c[o]me across his chest and down a second time.” Appellant’s App. Vol. II, p.

189.

[11] In requesting judicial review by the trial court, Emry effectively asked the trial

court to reweigh the evidence, which neither we nor the trial court may do. See

Court of Appeals of Indiana | Memorandum Decision 32A05-1712-PL-2996 | April 25, 2018 Page 5 of 6 Andrianova, 799 N.E.2d at 8. Upon review, we conclude that the evidence most

favorable to the agency’s decision is sufficient to sustain its action. Emry,

therefore, has failed to prove that the agency’s action was invalid.

[12] The judgment of the trial court is reversed and the suspension of Emry’s license

is reinstated.

Baker, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 32A05-1712-PL-2996 | April 25, 2018 Page 6 of 6