Terry M. Farmer v. Indiana Real Estate Appraiser Licensure and Certification Board (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 28 2019, 10:39 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Terry M. Farmer Curtis T. Hill, Jr. Hyden, Kentucky Attorney General of Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Terry M. Farmer, February 28, 2019 Appellant-Petitioner, Court of Appeals Case No. 18A-PL-2540 v. Appeal from the Marion Circuit Court Indiana Real Estate Appraiser The Honorable Sheryl Lynch, Licensure and Certification Judge Board, Trial Court Cause No. Appellee-Respondent. 49C01-1803-PL-12024

Riley, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-PL-2540 | February 28, 2019 Page 1 of 7

STATEMENT OF THE CASE [1] Appellant-Petitioner, Terry Farmer (Farmer), appeals the trial court’s dismissal

of his petition for judicial review. [2] We reverse and remand.

ISSUE [3] Farmer presents at least eleven issues on appeal, only one of which we find to

be dispositive and which we restate as follows: Whether the trial court erred

when it dismissed his petition for judicial review.

FACTS AND PROCEDURAL HISTORY [4] On May 8, 2016, Farmer applied to the Indiana Real Estate Appraiser

Licensure and Certification Board (the Board) for the renewal of his Indiana

appraiser’s license. On September 20, 2016, the Board sent Farmer a letter

informing him that the Board had denied his license renewal request and

describing his appeal options and procedures. On October 13, 2016, Farmer

filed an appeal with the Board. On November 23, 2016, the Board denied that

appeal. On December 8, 2016, Farmer filed a motion requesting that the Board

reconsider its denial of his appeal. [5] On March 24, 2017, the Board filed its Hearing Notice setting a hearing for

April 6, 2017, on Farmer’s petition for reconsideration. The Board also notified

Farmer that it would preside as administrative law judge (ALJ) at the hearing.

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On March 29, 2017, Farmer filed a motion with the Board seeking a new ALJ.

On May 11, 2017, the Board denied Farmer’s motion for a new ALJ. 1 On June

19, 2017, and on October 19, 2017, Farmer filed renewed motions for a new

ALJ, which were not responded to or ruled upon by the Board. [6] On March 27, 2018, Farmer filed a petition in the Marion County Circuit Court

seeking judicial review based on his allegation that the Board had failed to

respond to his June 19, 2017, and October 19, 2017, renewed motions for a new

ALJ. Farmer requested that “a full hearing/trial be scheduled with a possible

jury present.” (Appellant’s App. Vol. II, p. 20). In the alternative, Farmer

requested that the trial court assign an independent ALJ to his case or order the

Board to assign an independent ALJ to his case. [7] On April 25, 2018, the Board filed its Motion to Dismiss based on Indiana Trial

Rule 12(B)(6), alleging that Farmer had failed to state a claim upon which relief

could be granted because he lacked standing, having not received a final order

from the Board on his motion for a new ALJ and having failed to exhaust his

administrative remedies. The Board also alleged that Farmer’s petition was

subject to dismissal because he had failed to file a verified petition as required

by statute.

1 A copy of the Board’s May 11, 2017, order is not part of the record on appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-2540 | February 28, 2019 Page 3 of 7 [8] On September 25, 2018, the trial court held a hearing on the Board’s Motion to

Dismiss. 2 On October 3, 2018, the trial court issued its Order dismissing

Farmer’s petition for judicial review based on its finding that Farmer lacked

standing because he had not yet received a final order on his motion for a new

ALJ and had not exhausted his administrative remedies. [9] Farmer now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Standard of Review

[10] Farmer appeals following the trial court’s dismissal of his judicial review

petition pursuant to Indiana Trial Rule 12(B)(6) for failure to state a claim upon

which relief could be granted. A Rule 12(B)(6) motion tests the legal sufficiency

of a complaint and requires that we accept as true all facts as alleged in the

complaint. Esserman v. Ind. Dep’t of Envtl. Mgmt., 84 N.E.3d 1185, 1188 (Ind.

2017). We review a trial court’s ruling on a motion to dismiss for failure to

state a claim de novo. Id.

II. Dismissal

[11] On appeal, Farmer appears to take contradictory positions as to whether the

Board’s May 11, 2017, order denying his motion for a new ALJ was a final

order, and he develops no argument pertaining to the trial court’s conclusion

2 Farmer did not request a transcript of this hearing in his Notice of Appeal.

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that he had not exhausted his administrative remedies. For its part, the Board

reverses course and concedes on appeal that its May 11, 2017, order denying

Farmer’s petition for a new ALJ was a final order that was subject to judicial

review. The Board argues that Farmer’s petition was, nevertheless, properly

dismissed by the trial court because it was not timely. In light of the Board’s

concession on appeal, we will consider whether Farmer’s petition for judicial

review was subject to dismissal because it was untimely filed. [12] Pursuant to the Administrative Orders and Procedures Act (AOPA), judicial

review of an agency action is initiated by filing for review in the appropriate

court. I.C. § 4-21.5-5-2. “[A] petition for review is timely only if it is filed

within thirty (30) days after the date that notice of the agency action that is the

subject of the petition for judicial review was served.” I.C. § 4-21.5-5-5.

Furthermore, a litigant who fails to file a timely petition for judicial review

waives his right to appeal. I.C. § 4-21.5-5-4(b)(1). Thus, Farmer had thirty

days after he was served with notice of the Board’s May 11, 2017, order to file

his petition for judicial review. Id. Farmer did not file his petition for judicial

review in the trial court until March 27, 2017, and so his petition was untimely. [13] However, in K.S. v. State, 849 N.E.2d 538, 541-42 (Ind. 2006), our supreme

court held that certain procedural errors formerly characterized as jurisdictional

do not deprive a trial court of its subject matter jurisdiction. K.S., a juvenile

facing a probation revocation, challenged the juvenile court’s original

delinquency adjudication. Id. at 541. K.S. alleged that the trial court had failed

to approve the filing of the delinquency petition in writing, as required by

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statute, and that because of this error, the juvenile court never obtained subject

matter jurisdiction over her case. Id. Our supreme court held that because the

juvenile court had jurisdiction over the general class of actions to which K.S.’s

case belonged, there was no question that the juvenile court had jurisdiction

over her case. Id. at 542. The supreme court noted that “K.S.’s claim of

procedural error is untimely. Despite the alleged error occurring in the original

delinquency proceedings for battery, K.S. did not object during these

proceedings.” Id. [14] In light of K.S., this court has concluded that the failure of a litigant to file a

timely petition for judicial review is a procedural error, not a jurisdictional one.

Hunter v. Ind. Dep’t of Transp., 67 N.E.3d 1085, 1089 (Ind. Ct. App. 2016), trans.

denied. Because the issue of the timeliness of the filing of a petition for judicial

review is a procedural one, it can be waived if not raised at the appropriate

time. Id. (citing In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014)); K.S.,

829 N.E.2d at 542. The Board did not object to the timeliness of Farmer’s

petition for judicial review in the trial court proceedings, and so we conclude

that it has waived that claim. [15] The Board also argues on appeal that Farmer’s petition for judicial review was

subject to dismissal because it was unverified. AOPA requires that a petition

for judicial review be verified. I.C. § 4-21.5-5-7. Farmer’s petition for judicial

review was not verified. (Appellant’s App. Vol. II, pp. 14-22). However, the

Board does not provide us with any post-K.S. authority holding that a petition

for judicial review may be dismissed for lack of verification, and Farmer’s

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failure to verify his petition was not the basis for the trial court’s dismissal of his

petition for judicial review. We decline to consider the issue. Because the

Board has conceded that its May 11, 2017, order denying Farmer’s petition for

a new ALJ was a final order subject to judicial review and it waived any claim

that Farmer’s petition for review was untimely, we conclude that the trial court

erred when it dismissed Farmer’s petition for judicial review.

CONCLUSION [16] Based on the foregoing, we conclude that the trial court erred when it dismissed

Farmer’s petition seeking judicial review of the Board’s denial of his petition for

a new ALJ. [17] Reversed and remanded for further proceedings consistent with this opinion. [18] Robb, J. concurs [19] Kirsch, J. dissents without separate opinion

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