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FILED
Apr 24, 2009, 9:43 am

FOR PUBLICATION
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: GREGORY F. ZOELLER Attorney General of Indiana ELIZABETH ROGERS Deputy Attorney General Indianapolis, Indiana

ATTORNEYS FOR APPELLEES: WILLIAM C. MOYER STEPHEN T. NAVILLE Lorch & Naville, LLC New Albany, Indiana KAREN YVONNA RENFRO New Albany, Indiana

IN THE COURT OF APPEALS OF INDIANA
INDIANA PESTICIDE REVIEW BOARD, Appellant-Respondent, vs. BLACK DIAMOND PEST & TERMITE CONTROL, INC., et al., Appellees-Petitioners. ) ) ) ) ) ) ) ) ) )

No. 22A05-0804-CV-258

APPEAL FROM THE FLOYD SUPERIOR COURT The Honorable Susan L. Orth, Judge Cause No. 22D01-0612-PL-497

April 24, 2009

OPINION - FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE The Indiana Pesticide Review Board ("the Board") appeals from the trial courts grant of the motion to correct error filed by Black Diamond Pest & Termite Control, Inc. ("Black Diamond"); Durwin Keith Duncan, Sr.; Durwin Keith Duncan, Jr.; and Brian Thomas (collectively "the Appellees"). The Board presents the following restated issues for our review: 1. Whether the trial court erred when it reversed the Board with respect to some of the Boards findings and conclusions on judicial review. Whether the trial court erred when it remanded to the Board to determine whether the penalties the Board imposed on the Appellees are appropriate.

2.

The Appellees cross-appeal and contend that the Boards appeal with respect to Duncan, Jr. is moot. We affirm in part and reverse in part. FACTS AND PROCEDURAL HISTORY Black Diamond is an Indiana corporation located in New Albany. Duncan, Sr. and his wife are the sole shareholders of Black Diamond, and Duncan, Sr. is the president of the corporation. Duncan, Jr. is an employee of Black Diamond, and Thomas was an employee of Black Diamond at all times relevant to this appeal. On September 21, 2005, the Office of the Indiana State Chemist ("OISC") notified Black Diamond, the Duncans, and Thomas that they had violated various pesticide laws. Because of the violations, the OISC notified the Appellees that each of their licenses1 would be revoked and suspended indefinitely. The Appellees sought review of the
Black Diamond had its business license revoked, while the Duncans and Thomas had their applicator licenses revoked.
1

2

OISCs decision, and, on October 23, 2006, an ALJ panel affirmed the OISCs decision. The Appellees sought review of the ALJ panels findings and conclusions by the Board. Following oral argument, the Board adopted the ALJ panels findings and conclusions. The Appellees sought judicial review of the Boards decision with the trial court.2 On December 11, 2007, the trial court affirmed the decision of the Board. Black

Diamond and the Duncans and Thomas filed motions to correct error, which the trial court granted in part and denied in part. The trial court found and concluded in relevant part as follows:3 26. The OISC charged Duncan, Sr. and Black Diamond for violations alleged to have occurred at the Turtle Run Winery. Duncan, Jr. was not charged. The OISC charged Duncan, Sr. and Black Diamond with a violation of I.C. [

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