Bobby Brower, Appellant-Petitioner v. Indiana Horse Racing Commission and Indiana Horse Racing Commission Staff, Appellees-Respondents (2025)

MEMORANDUM DECISION

[1] Bobby Brower appeals the trial court's order in favor of the Indiana Horse Racing Commission (“IHRC”) and the IHRC Staff. We affirm.¹

Facts and Procedural History

[2] On November 4, 2016, the IHRC filed an Administrative Complaint against Brower, a licensed “Standardbred owner/trainer/driver” subject to IHRC rules and regulations, alleging that he violated multiple provisions of the Indiana Administrative Code when he mistreated, abused, and engaged in acts of cruelty toward the horse “B ABland,” interfered with or obstructed an IHRC employee while performing his official duties when he or his agent directly or indirectly threatened potential witnesses against him, failed to care for the health, condition and safety of “B ABland,” and beat and abused “B ABland” resulting in injury. Appellee's Appendix Volume II at 113-114. The IHRC recommended that Brower be suspended and remain ineligible for licensure for fifteen years and fined $40,000.

[3] In April 2018, Brower, his counsel, and Michael Smith, the Executive Director of the IHRC, signed a Settlement Agreement which referenced the November 2016 complaint and provided:

AGREEMENT

* * * * *

11. As a penalty for the referenced violations, Brower has agreed to a four (4) year suspension, effective retroactively from March 7, 2017 through and including March 7, 2021.

12. Brower further agrees that he will not seek licensure from the [IHRC] for a period of seven (7) years after the end of his suspension reference in Paragraph 11. The Agreement in this paragraph is NOT a penalty, suspension or revocation imposed by the [IHRC]. It is a voluntary undertaking by Brower.

13. It is agreed that Brower shall pay no monetary fine or penalty.

14. Mr. Brower agrees to dismiss with prejudice and/or withdraw all related pending legal and administrative proceedings and release all claims and potential claims against the Commission, the Commission Staff and/or its current or former representatives, agents and/or employees relating to the Commission action that is the subject of this Settlement Agreement. Mr. Brower specifically agrees to release and forever discharge any claims and/or complaints against the Commission, the Commission Staff and/or its current or former representatives agents and/or employees and/or the Judges arising from, relating to, or in any way connected with or in any way related to the issues associated with the Commission Staff's initiation and/or pursuit of the underlying disciplinary action against Mr. Brower.

15. Should Brower breach this Agreement, this Agreement shall be deemed void, and the Commission Staff may commence proceedings related to the alleged violations as though the Agreement never existed.

16. The Commission will enter a ruling consistent with the Agreement that will make clear that the penalty/sanction set forth in rhetorical paragraph eleven (11) of the Agreement is the only and total penalty/sanction for the alleged violations referenced in this Settlement Agreement. It is the intent of the Parties that this Agreement not be interpreted as imposing any other sanction or penalty other than that set forth in rhetorical paragraph eleven (11) herein.

Appellant's Appendix Volume II at 23.

[4] At some point in 2022, Brower retained the services of Attorney Howard Taylor, an attorney in Pennsylvania, who assisted him with trying to obtain a standardbred owner and trainer license from the Pennsylvania Horse Racing Commission. Representatives of the Pennsylvania Horse Racing Commission advised that a license would not be issued “because of Rhetorical Paragraph 12” of the Settlement Agreement. Id. at 42.

[5] At some point, Brower submitted an application for “a standardbred owners and trainer's license” to the Kentucky Horse Racing Commission. Id. at 47. The application “was denied and subsequently withdrawn,” and the “reason for the Kentucky Horse Racing Commission's denial ․ was Rhetorical Paragraph 12 of the Settlement Agreement.” Id. Brower also retained counsel in Ohio who had meetings with representatives of the Ohio Horse Racing Commission and “was advised a license would not be issued to [Brower] because of Rhetorical Paragraph 12 of the Settlement Agreement.” Id. at 48.

[6] At some point, Brower asked the IHRC to clarify his sanction. On April 12, 2022, the IHRC entered a “Violation Declaration,” which stated in part:

For clarification, this ruling supersedes or rescinds, or both, Judges’ Ruling HP-2017-1006 (ORIG) dated March 23, 2017, and issued on March 29, 2017; Judges’ Ruling HP-2017-1301 (ORIG) dated and issued on October 24, 2017; and Judges’ Ruling HP-2017-1006 (AMI) with the original Date of Ruling of March 23, 2017, and issued on September 7, 2018.

Standardbred owner/trainer/driver licensee Bobby Brower, having reached a settlement agreement with the Indiana Horse Racing Commission (“IHRC”), and in full and complete resolution of any and all further administrative proceedings involving Administrative Complaint 216005, dated November 4, 2016, has agreed with IHRC to the following:

1. Brower is suspended for a period of four (4) years, effective retroactively from March 7, 2017, through and including March 7, 2021.

The sanctions referenced in this amendment are the total sanctions for the violations referenced.

Id. at 26.

[7] On July 20, 2022, Brower submitted a Trainer License Application with the IHRC. On February 15, 2023, Brower submitted another Trainer License Application with the IHRC. On March 14, 2023, the IHRC entered a Notice of License Refusal, which stated:

Pursuant to I.C. 4-31-6-6 and 71 IAC 5-1-12, the [IHRC], by and through its designated representative, refuses to issue the license sought by the above-referenced Applicant. The Applicant should be mindful of the provisions of 71 IAC 5-1-12, which reads in its entirety:

Section 12. The commission, the judges, or the executive director as the commission's designee may refuse to issue a license. The decision to refuse a license is treated as a withdrawal of the license application without prejudice and is not reported to the ARCI.[2] If an applicant is refused, the applicant may reapply for a license. An applicant may contest a refusal within fifteen (15) days of notice of the refusal. If an applicant contests a license refusal, the judges (or an administrative law judge if the judges are unavailable) shall conduct a hearing pursuant to the procedures provided for in 71 IAC 10 and IC 4-21.5. Nonetheless, the hearing on a license refusal is not considered to be a disciplinary action. If the judges affirm the decision to refuse a license application, the refusal shall be treated as the denial of the application, consistent with these rules.

Id. at 29.

[8] Brower contested this decision, and the IHRC judges conducted a hearing on May 10, 2023.³ On June 14, 2023, a document signed by a presiding judge and two associate judges of the IHRC stated, “After hearing testimony from Mr. Brower, his attorneys, and Mr. Brower's witness, the judges determined that the decision to refuse the license was correct and hereby affirm that decision.” Id. at 31. The document stated that, “in accordance with 71 IAC 5-1-12, the decision to affirm the refusal of Mr. Brower's license application is treated as a denial of said application.” Id. The document also stated: “Appeal Process: Pursuant to 71 IAC 10-2-9, anyone who is aggrieved or adversely affected by this ruling may appeal to the Commission. Such appeal must be filed with the Commission within fifteen (15) days of this ruling.” Id.

[9] On July 3, 2023, Brower filed an appeal of the June 14, 2023 decision and asserted that the denial failed to cite any basis as set out in Ind. Code § 4-31-6-6 and thus was contrary to the law pertaining to the refusal of license and was arbitrary and capricious. On January 30, 2024, the IHRC Staff filed a Motion for Summary Judgment. On February 2, 2024, Brower filed a Cross Motion for Summary Judgment.⁴

[10] On April 17, 2024, Administrative Law Judge Tracey Yeager (“ALJ Yeager”) entered a Non-Final Order on Parties’ Cross Motions for Summary Judgment which stated:

8. [Brower] argues that Indiana Trial Rule 56, the standard applicable to the parties’ cross motions for summary judgment, “․ expressly incorporates the Rules of Evidence in supporting and opposing a Motion for Summary Judgment” and, as a result, the parties are precluded from the use of hearsay, as would be permitted by the evidentiary standard set forth in [the Administrative Orders and Procedures Act]. [Brower] does not cite law to support its position that the Rules of Evidence are expressly incorporated in a Motion for Summary Judgment. [Brower's] argument is a misstatement of ITR 56. ITR 56 does not impose the application of the Indiana Rules of Evidence to the parties’ submissions. (See Indiana Trial Rules 56.) Further, and the most confounding of [Brower's] positions on this subject is [Brower's] own reliance on hearsay evidence to support his arguments after arguing hearsay is not permitted. A non-exhaustive list of [Brower's] reliance on hearsay evidence in contravention of his own argument, would be portions of Petitioner's Exhibit 2 – Application, Petitioner's Exhibit 3 – Affidavit of Howard Taylor, and Petitioner's Exhibit 4 – Affidavit of Bobby Brower.

9. [Brower] argues that when he entered into the Settlement Agreement it was anticipated that, after serving the imposed 4-year suspension, he would be able to secure a license in a jurisdiction other than Indiana, and having discovered that other jurisdictions would not issue him a license, good cause exists for him not to be bound by his agreement not to seek a license in Indiana before March 8, 2028. Disregarding that [Brower] has failed to conclusively establish that he has filed an application in the states he cites, Kentucky, Pennsylvania, and Ohio, and disregarding that three states presumably do not constitute an exhaustive list of states where licensing is possible, [Brower's] perceptions and recollections as to what he anticipated his relicensing prospects to be are immaterial. It is undisputed that [Brower's] anticipation that he could successfully license in another state prior to the seven years expiring is not set out in the Settlement Agreement as a condition precedent to his agreement to not reapply for licensure in the state of Indiana before March 8, 2028. The terms of a contract are deemed within the four corners of the document, or they are not to be enforced. In this instance, there is no genuine issue as to the material fact that [Brower] entered into the Settlement without qualification as to paragraph 12, after and with the benefit of counsel, and regardless now of his lack of satisfaction with the terms of that agreement, he is now bound to its terms.

10. [Brower] argues that because he breached the Settlement Agreement by applying for licensure with [the IHRC], the Settlement Agreement is void; thus, [the IHRC] is left solely with the remedy of pursuing the original disciplinary action(s) against [Brower]; and [the IHRC] may not refuse his February 2023 license application. It is well settled law that a breaching party may not take advantage of their breach to relieve themselves of their contractual duties. In this instance, breach or not, [Brower] has a contractual duty under the Settlement Agreement not to apply for licensure before March 7, 2028. [Brower] may not take advantage of his breach of that duty to require [the IHRC] to perform beyond the Settlement Agreement, in this instance to accept his application for licensure. (See Fischer v. Heymann, 12 [N.]E.3d 867 (2014)[, reh'g denied,] and Nat'l Advertising Co. v. Wilson Auto Parts, Inc., 569 N.E.2d 997 (Ind. Ct. App. 1991).)

11. [Brower] further argues that [the IHRC's] enforcement of the seven (7) year sit-down provision of the Settlement Agreement would effect a period of suspension in excess of that which he would have served under the original 2016 disciplinary action. This argument is not supported by the facts. Judges Ruling HP-2017-1006 dated March 23, 2017 notes a recommended fine of Forty Thousand Dollars ($40,000.00) and a fifteen (15) year license suspension. Arguably this is the penalty [Brower] was at risk of prior to entering into the Settlement Agreement. However, more to the point, [Brower's] argument as to what might have been is immaterial to this matter, for the reasons set forth above.

12. Indiana law vests IHRC with the responsibility and power to regulate horse racing in Indiana in a manner that ensures that par-mutuel [sic] wagering on horse races in Indiana will be conducted with the highest of standards and the greatest level of integrity. (See IC 4-31-1-2 and IC 4-31-3-9.) To that end, in April of 2018, IHRC entered into a Settlement Agreement with [Brower] that reflected the understandings and agreements of the parties as to all outstanding issues pertaining to [the IHRC's] disciplinary action against [Brower]. In refusing [Brower's] February 2023 application for licensure, [the IHRC] abided by the terms of that Settlement Agreement and complied with its statutory mandate to ensure the integrity of horse racing.

* * * * *

Decision and Recommendation

The ALJ recommends entering summary judgment in favor of IHRC, as a matter of law, and against [Brower].

Id. at 74-77 (footnote omitted).

[11] On May 1, 2024, Brower filed an “Appeal on Non-Final Order on Parties’ Cross Motions for Summary Judgment of April 17, 2024.” Appellees’ Appendix Volume II at 69. On July 24, 2024, the IHRC entered a Final Order adopting the April 17, 2024 order and stated: “The refusal of the license application of Brower is upheld, as set forth by the Judges at Harrah's Hoosier Park on or about June 17, 2023. The decision to uphold the refusal of Brower's license application is treated as a denial of the application.” Appellant's Appendix Volume II at 68.

[12] On August 9, 2024, Brower filed a Verified Petition for Judicial Review in the Madison Circuit Court. On March 6, 2025, the court held a hearing. On April 1, 2025, the trial court entered an “Order Denying Plaintiff's Petition for Judicial Review.” Id. at 13 (capitalization omitted). The order states:

The court denies [Brower's] petition for judicial review because he signed a valid contract with the [IHRC]. He cannot now breach it to gain an advantage.

* * * * *

The issue is whether the IHRC followed its own rules when it denied [Brower's] license application. It did. The applicable statute is I.C. 4-31-6-6․

* * * * *

To deny a license, the IHRC must fit the denial within subsections (a) and (b). The IHRC can deny an application if it is in the public interest to maintain proper control over horse racing meetings and the applicant engaged in conduct against the best interest of horse racing. The IHRC made these findings. (Record pp. 11-12).

The undisputed evidence before the ALJ was that the IHRC and [Brower] entered into a settlement agreement to resolve a pending disciplinary case. The Settlement agreement was a compromise. The IHRC gave up pursuing the maximum penalties, 15-year suspension, and a $40,000.00 fine, and [Brower] agreed to a shorter suspension, four years, and no financial penalty. No party argued that the settlement of pending IHRC violations ran afoul of public policy. This is not surprising because Indiana encourages the private settlement of disputes. See generally ADR rules. The ALJ and the IHRC found that the enforcement of settlement agreements maintains proper control over horse racing meetings and that the enforcement of settlement agreements is in the best interests of horse racing. (Record pp. 35-36 ALJ ruling paragraphs 12 to 13). The ALJ wrote that the IHRC's denial of [Brower's] license application complied “․ with its statutory mandate to ensure the integrity of horse racing.” “[To ignore the settlement agreement] would have deteriorated the credibility, predictability and unbiased uniformity of IHRC's disciplinary process.” (R. pp. 35-36).

[Brower] argues that on day one of his seven-year no-file period, he can file for an Indiana license, thereby voiding the settlement agreement, and the IHRC cannot use the settlement agreement as a basis to deny his application because it is void. If [Brower] is correct, then the parties’ agreement that [Brower] shall not have an Indiana license for seven years after his suspension period is defeated. The law does not uphold such a result․ [Brower] cannot voluntarily breach his contract and then claim he must be licensed in Indiana during his 7-year no-file period.

Accepting [Brower's] legal position as correct, namely the settlement agreement is void, the IHRC is still within its statutory authority to deny his license application because under this scenario [Brower] “tricked” the IHRC into entering into a settlement agreement in which he agreed to not apply for a license for seven years knowing full well that he would so [sic] at his first opportunity utilizing paragraph 15 (voiding the agreement) to his advantage. To grant a license to a person capable of such duplicity is not in the best interest of horse racing. If on the other hand, the reality is that [Brower] did not sign the settlement agreement with a settled purpose of breaching it at the first opportunity but only did so when he discovered that he was unable to get a license in other states, then [Brower] entered into the settlement agreement with an imperfect understanding of how other states would interpret his settlement agreement. [Brower's] avenue of redress is with the other states, not the IHRC.

CONCLUSION

The court denies [Brower's] Petition for Judicial Review.

Id. at 13-19 (footnote omitted).

Discussion

[13] Brower argues that the IHRC's denial of his application lacked foundation under the applicable statutory framework found in Ind. Code § 4-31-6-6 and that statute establishes the exclusive grounds upon which the IHRC may deny a license. He contends that the IHRC has chosen not to follow the remedy specified in the Settlement Agreement when it failed to commence proceedings related to the alleged violations as though the Settlement Agreement never existed. He asserts that his efforts to seek alternative ways to maintain his living resulted in “the IHRC April 2022 Ruling, which ․ rescinded the Settlement Agreement's seven-year waiting period.” Appellant's Brief at 18. He also argues that the trial court failed to address the fact that ALJ Yeager did not apply the correct evidentiary standard and disregarded competent affidavits. Specifically, he asserts that, under Ind. Code § 4-21.5-3-23, motions for summary judgment in administrative proceedings must be evaluated using the same standard as motions under Ind. Trial Rule 56, which contemplates affidavits as evidence. He argues that the Settlement Agreement is invalid due to mutual, or at least unilateral, mistake. He contends that, during the seven-year period, “it was the belief and intention of both parties to the Settlement Agreement that [he] would be able to obtain a license in another jurisdiction to continue his livelihood.” Id. at 23. Lastly, Brower argues that the Settlement Agreement operates as an unlawful restraint on trade.

[14] At the time Brower filed the Verified Petition for Judicial Review on August 9, 2024, Indiana's Administrative Orders and Procedures Act provided that a trial court shall grant relief under Ind. Code § 4-21.5-5-15 only if it determines that a person seeking judicial relief has been prejudiced by an agency action that is:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) contrary to 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 a preponderance of the evidence.

Ind. Code § 4-21.5-5-14(d).⁵ Ind. Code § 4-21.5-5-11(a) provides that “[j]udicial review of disputed issues of fact must be confined to the agency record for the agency action supplemented by additional evidence taken under section 12 of this chapter,” and “[a] court is not bound by a finding of fact made by the ultimate authority if the finding of fact is not supported by the record.” Ind. Code § 4-21.5-5-11(b) provides that “[t]he court shall decide all questions of law, including any interpretation of a federal or state constitutional provision, state statute, or agency rule, without deference to any previous interpretation made by the agency.” Brower bears the burden of demonstrating that the IHRC's action was invalid. See Ind. Code § 4-21.5-5-14(a) (“The burden of demonstrating the invalidity of agency action is on the party to the judicial review proceeding asserting invalidity.”).

[15] “A party may, at any time after a matter is assigned to an administrative law judge, move for a summary judgment in the party's favor as to all or any part of the issues in a proceeding.” Ind. Code § 4-21.5-3-23(a). “[A]n administrative law judge shall consider a motion filed under subsection (a) as would a court that is considering a motion for summary judgment filed under Trial Rule 56 of the Indiana Rules of Trial Procedure.” Ind. Code § 4-21.5-3-23(b). Generally, we review an order for summary judgment de novo, applying the same standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The moving party bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). If the moving party succeeds, then the nonmoving party must come forward with evidence establishing the existence of a genuine issue of material fact. Id. We construe all factual inferences in favor of the nonmoving party and resolve all doubts as to the existence of a material issue against the moving party. Id. Our review is limited to those materials designated to the trial court. Mangold v. Ind. Dep't of Nat. Res., 756 N.E.2d 970, 973 (Ind. 2001). We must carefully review a decision on a summary judgment motion to ensure that a party was not improperly denied its day in court. Id. at 974. The interpretation of a settlement agreement is generally appropriate for summary judgment because the interpretation of a contract is generally a question of law. See Wohlt v. Wohlt, 245 N.E.3d 611, 616 (Ind. 2024). The fact that the parties made cross motions for summary judgment does not alter our standard of review. Musgrave v. Squaw Creek Coal Co., 964 N.E.2d 891, 900 (Ind. Ct. App. 2012), trans. denied. Instead, we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id.

[16] “The IHRC was created for the purpose for ensuring that ‘pari-mutuel wagering on horse races in Indiana will be conducted with the highest standards and greatest level of integrity.’ ” Ind. Horse Racing Comm'n v. Martin, 990 N.E.2d 498, 500 (Ind. Ct. App. 2013) (quoting Ind. Code § 4-31-1-2). “Consistent with that purpose, the IHRC requires certain individuals participating in horse racing to be licensed.” Id. “The IHRC is further authorized to adopt rules establishing a procedure for license applications and fees.” Id. at 504 (citing Ind. Code § 4-31-6-2).

[17] The Indiana Administrative Code governs the process for settlement procedures. See 71 Ind. Admin. Code 10-3-21. To the extent we must interpret the Settlement Agreement, interpretation of a settlement agreement presents a question of law and is reviewed de novo. Bailey v. Mann, 895 N.E.2d 1215, 1217 (Ind. 2008). Construction of settlement agreements is governed by contract law. Ind. State Highway Comm'n v. Curtis, 704 N.E.2d 1015, 1018 (Ind. 1998). If a contract's terms are clear and unambiguous, courts must give those terms their clear and ordinary meaning. Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 251 (Ind. 2005). Courts should interpret a contract so as to harmonize its provisions, rather than place them in conflict. Id. at 252.

[18] Ind. Code § 4-31-6-6 is titled “Conditions for penalizing applicant or licensee” and provides:

(a) The commission may refuse or deny a license application, revoke or suspend a license, or otherwise penalize a licensee, if:

(1) the refusal, denial, revocation, suspension, or other penalty is in the public interest for the purpose of maintaining proper control over horse racing meetings or pari-mutuel wagering; and

(2) any of the conditions listed in subsection (b) apply to the applicant or licensee.

(b) The conditions referred to in subsection (a) are as follows:

* * * * *

(2) The applicant or licensee has had a license of the legally constituted racing authority of a state, province, or country denied, suspended, or revoked for cause within the preceding five (5) years.

* * * * *

(9) The applicant or licensee has abandoned, mistreated, abused, neglected, or engaged in an act of cruelty to a horse.

(10) The applicant or licensee has engaged in conduct that is against the best interest of horse racing.

[19] To the extent we must interpret the statutes related to the IHRC, we aim to determine and give effect to the intent of the legislature. Ind. Alcohol & Tobacco Comm'n v. Spirited Sales, LLC, 79 N.E.3d 371, 376 (Ind. 2017). We start with the plain language of the statute, giving its words their ordinary meaning and considering the structure of the statute as a whole. Id. (quotation and citation omitted). “To the extent ambiguity exists, we determine and give effect to the intent of the legislature as best it can be ascertained.” Id.

[20] We do not read Paragraph 15 of the Settlement Agreement to mean that Brower may breach the agreement and then declare it void. As noted by ALJ Yeager and the trial court, the Indiana Supreme Court has held that “breaching parties may not take advantage of their breach to relieve them of their contractual duties.” Fischer v. Heymann, 12 N.E.3d 867, 872 (Ind. 2014) (citing Rogier v. Am. Testing & Eng'g Corp., 734 N.E.2d 606, 620 (Ind. Ct. App. 2000), reh'g denied, trans. denied), reh'g denied.

[21] To the extent Brower asserts that the April 12, 2022 Violation Declaration rescinded the Settlement Agreement's seven-year waiting period, we disagree. The Violation Declaration stated that Brower was suspended for a period of four years “effective retroactively from March 7, 2017, through and including March 7, 2021,” and that this sanction “referenced in this amendment are the total sanctions for the violations referenced.” Appellant's Appendix Volume II at 26. Similarly, Paragraph 12 of the Settlement Agreement provided that “[t]he Agreement in this paragraph is NOT a penalty, suspension or revocation imposed by the [IHRC]. It is a voluntary undertaking by Brower.” Id. at 23.

[22] With respect to Brower's argument that the trial court failed to address the fact that ALJ Yeager did not apply the correct evidentiary standard and disregarded competent affidavits, we note that the April 17, 2024 Non-Final Order on Parties’ Cross Motions for Summary Judgment stated: “The ALJ shall consider the summary judgment as a court would consider summary judgment under Rule 56 of the Indiana Rules of Trial Procedure.” Id. at 74. While ALJ Yeager commented on Brower's argument regarding hearsay by stating that “the most confounding of [Brower's] positions on this subject is [Brower's] own reliance on hearsay evidence to support his arguments after arguing hearsay is not permitted,” id. at 75, the record does not support Brower's assertions that ALJ Yeager improperly excluded any affidavit submitted by Brower or that such evidence precluded summary judgment.

[23] To the extent Brower argues that the Settlement Agreement is invalid due to mutual, or at least unilateral, mistake, we disagree. Without citation to the record, Brower asserts that “[t]he evidence provided to the lower court demonstrated that both the IHRC and [he] believed the seven-year waiting period would not function as a bar to licensure outside Indiana.” Appellant's Brief at 22-23. He also asserts, without citation to the record, that the Settlement Agreement is voidable for unilateral mistake induced by the IHRC's misrepresentations. “In contract law, reformation will not be granted unless the parties’ mistake is mutual.” Carlson v. Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos, 895 N.E.2d 1191, 1199 (Ind. 2008), reh'g denied. “It is not enough that both parties are mistaken about any fact; rather, the mistaken fact complained of must be one that is of the essence of the agreement, the sine qua non, or, as is sometimes said, the efficient cause of the agreement, and must be such that it animates and controls the conduct of the parties.” Kesling v. Kesling, 967 N.E.2d 66, 78 (Ind. Ct. App. 2012) (quotation marks and citations omitted), trans. denied. We further note that Ind. Code Article 4-31 established the IHRC and Ind. Code § 4-31-1-2 provides that “[t]he purpose of this article is to permit parimutuel wagering on horse races in Indiana and to ensure that pari-mutuel wagering on horse races in Indiana will be conducted with the highest of standards and the greatest level of integrity.” (Emphases added). Brower has not demonstrated that reversal is warranted on this basis.

[24] Lastly, we disagree with Brower's argument that the Settlement Agreement operates as an unlawful restraint on trade. The legislature established the IHRC and provided it with the authority to discipline licensees under certain circumstances. Based upon the record, the decision of the IHRC was not arbitrary, capricious, or unsupported by a preponderance of the evidence.

[25] For the foregoing reasons, we affirm the trial court's order.

[26] Affirmed.

FOOTNOTES

1.   Brower has not filed a motion for oral argument, but his appellant's brief states after the caption page, “Appellant requests oral argument.” Appellant's Brief at 2. We deny his request

2.   71 IAC 1-1-8 defines “ARCI” as “the Association of Racing Commissioners International, Inc.”

3.   The record does not contain a transcript of the May 10, 2023 hearing.

4.   In his cross motion for summary judgment, Brower designated an affidavit of Attorney Taylor, which discussed his contact with the Pennsylvania Horse Racing Commission. Brower also designated his own affidavit, which discussed his submission of an application to the Kentucky Horse Racing Commission and his counsel's meetings with representatives of the Ohio Horse Racing Commission.

5.   In 2024, the legislature amended subsection (d)(5) to require that the party seeking judicial relief be prejudiced by an agency action that is “unsupported by a preponderance of the evidence,” rather than “substantial evidence” specified in the prior version of the statute. See Pub. L. No. 128-2024, § 14 (eff July 1, 2024). The trial court's April 1, 2025 order applies the current version of the statute. See Appellant's Appendix Volume II at 13-14. We agree and apply the version in effect at the time that Brower filed the Verified Petition for Judicial Review on August 9, 2024. See Ind. Code § 1-1-5.5-24 (providing in part: “(a) Except as provided in subsection (b), a SECTION of HEA 1003-2024 does not apply to an administrative proceeding or a proceeding for judicial review pending on June 30, 2024. (b) A SECTION of HEA 1003-2024 applies to: (1) an administrative proceeding or a proceeding for judicial review commenced after June 30, 2024; or (2) an administrative proceeding conducted after June 30, 2024, on remand from a court”).

Brown, Judge.

Judges Felix and Scheele concur. Felix, J., and Scheele, J., concur.