Court of Appeals of Indiana|Memorandum Decision on Rehearing 49A02-1501-PL-7 September 30, 2015 Page 1

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MEMORANDUM DECISION 

ON REHEARING

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

William R. Groth

David R. Vlink

Fillenwarth Dennerline Groth & Towe, 

LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Abigail R. Recker

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

David Moss,

Appellant-Respondent,

v.

Indianapolis Department of 

Natural Resources,

Appellee-Petitioner.

September 30, 2015

Court of Appeals Cause No.

49A02-1501-PL-7

Appeal from the Marion Circuit 

Court

The Honorable Louis F. 

Rosenberg, Judge

Trial Court Cause No.

49C01-1405-PL-17919

Barnes, Judge.
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[1] David Moss and the Indiana Department of Natural Resources (“DNR”) both 

petition for rehearing following our memorandum decision in Moss v. Indiana 

Department of Natural Resources, No. 49A02-1501-PL-7 (Ind. Ct. App. July 9, 

2015). We grant rehearing for the limited purpose of addressing DNR’s 

argument regarding waiver but affirm our decision in all regards. 

[2] In our decision, we concluded that, based on the limited record before us, it was 

not clear whether the issues raised by DNR in its petition for judicial review 

were first raised to the NRC so as to preserve them for judicial review pursuant 

to Indiana Code Section 4-21.5-5-10. In its petition for rehearing, DNR 

contends that we improperly addressed this issue because it was not raised by 

either party. In making this argument, DNR appears to confuse the concepts of 

waiver as an affirmative defense and waiver as procedural default or forfeiture. 

The former places the burden of proof on the party required to plead the matter. 

See Bunch v. State, 778 N.E.2d 1285, 1287 (Ind. 2002). The later, however, is “a 

discretionary judicial doctrine that forecloses an issue on appeal.” Id. 

Procedural default or forfeiture is “a doctrine of judicial administration 

whereby appellate courts may sua sponte find an issue foreclosed under a 

variety of circumstances in which a party has failed to take the necessary steps 

to preserve the issue.” Id. 

[3] It is the procedural default or forfeiture concept of waiver that is relevant to our 

decision and available to us sua sponte. As we explained in our decision, “a 

party may only obtain judicial review of issues that were raised before the 

administrative agency and preserved for review.” Moss, No. 49A02-1501-PL-7, 
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slip op. at 8 (citing Dev. Servs. Alternatives, Inc. v. Indiana Family & Soc. Servs. 

Admin., 915 N.E.2d 169, 178 (Ind. Ct. App. 2009)). 

[4] We described the statutory requirement and policy reasons for requiring a party 

to raise an issue to an administrative agency first, and these policy reasons 

come into play here. After Moss’s termination, an ALJ conducted a full 

evidentiary hearing, and DNR challenged the ALJ’s decision to the NRC, 

which conducted a quasi-appellate review of the ALJ’s decision. As a matter of 

judicial economy, DNR should not be permitted to raise issues in its petition for 

judicial review that were not raised to and addressed by the NRC in the 

administrative proceedings. 

[5] We also decline the parties’ requests to supplement the appellate record and 

decide the case on the merits because the trial court, which remanded the case 

to the NRC based on its conclusion that NRC failed to properly identify the 

“just cause” standard, has yet to address the merits of DNR’s petition. 

Accordingly, remand is appropriate so that the trial court can consider any 

properly preserved issues and make the necessary findings. See Ind. Code § 4-

21.5-5-14 (c) (requiring a trial court in a judicial review proceeding to “make 

findings of fact on each material issue on which the court’s decision is based”); 

Regester v. Indiana State Bd. of Nursing, 703 N.E.2d 147, 151 (Ind. 1998)

(observing that “judicial review findings must be adequate to demonstrate that 

the court has undertaken to assess the claims for judicial relief that are before 

it.”). We affirm our decision in all regards.
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[6] Bailey, J., concurs.

Riley, J., would deny petition for Rehearing.