Everett Powell v. Indiana Real Estate Commission (mem. dec.)

MEMORANDUM DECISION ON REHEARING Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 30 2020, 9:18 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 Everett Powell Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Everett Powell, June 30, 2020 Appellant-Petitioner, Court of Appeals Case No. 19A-MI-1568 v. Appeal from the Marion Superior Court Indiana Real Estate The Honorable Heather Welch, Commission, Judge Appellee-Respondent Trial Court Cause No. 49D01-1903-MI-9674

Baker, Judge. Court of Appeals of Indiana | Mem. Dec. on Rehearing 19A-MI-1568 | June 30, 2020 Page 1 of 4 [1] Everett Powell has filed a petition for rehearing. We grant it for the limited

purpose of addressing his arguments that we were mistaken in several respects

in our decision. First, he argues that we mistakenly stated that he stole $5,000

from a client. As he must surely be aware, we were not wrong. See In re Powell,

76 N.E.3d 130, 132 (Ind. 2017) (noting that the hearing officer found that

during Powell’s suspension from the practice of law, he “misappropriated

$5,000 from another client”). [2] Second, he argues that we mistakenly noted that he did not provide all details

about his attorney disciplinary proceedings in his real estate broker application,

contending that this is a disputed issue of fact that is improper for us to resolve.

He is wrong. It is undisputed that, in his broker application, he disclosed the

2011 disciplinary action but failed to disclose any information or court

documents regarding the petitions for reinstatement or the denials thereof. [3] Third, he notes that we stated that the Disciplinary Commission sought to

withdraw the third reinstatement petition. In this case, he is correct that we

misspoke and should have said that Powell moved to withdraw that petition. [4] Fourth, he states that we were incorrect that he failed to raise his equal

protection argument before the trial court. He directs our attention to his

petition for judicial review, which includes a lone sentence, unsupported by

citation to authority, that “[t]o selectively prosecute Petitioner is a violation of

his equal protection rights.” Appellant’s App. Vol. II p. 54. This is insufficient

to preserve the issue for appellate review.

Court of Appeals of Indiana | Mem. Dec. on Rehearing 19A-MI-1568 | June 30, 2020 Page 2 of 4 [5] Fifth, he notes that we found no support in the record for his contention that

the administrative law judge (ALJ) had quashed his request for production of

documents. He is correct that there is, indeed, an order in the record in that

regard.1 We note, briefly, that the ALJ quashed the discovery request for the

following reasons: (1) the request for copies of over ten years of real estate

broker and real estate managing broker applications was overly broad and

unduly burdensome; and (2) the request was made of a non-party, which is

governed by Trial Rule 34(C), and Powell did not comply with the

requirements of that rule. Appellee’s App. Vol. III p. 242-43. The ALJ’s order

noted that the quashing of the document request did “not mean that with a

proper request, [Powell] may not be entitled to production of certain documents

nor does it limit his ability to seek access to public records[.]” Id. at 243

(emphasis added). Powell did not establish a likelihood of success on the merits

with his argument that this order was improper. Therefore, while we

acknowledge the error in our decision with respect to this order, the result does

not change. [6] Sixth, Powell argues that we should have framed our decision in terms of a

grant of summary judgment rather than the denial of his petition for a

preliminary injunction. We confess our confusion, as the proceedings below

1 In Powell’s briefs, his only citation to the record in support of this argument was to his own pleadings. Appellant’s Br. p. 36; Reply Br. p. 19.

Court of Appeals of Indiana | Mem. Dec. on Rehearing 19A-MI-1568 | June 30, 2020 Page 3 of 4

were not summary judgment proceedings.2 We decline to amend our decision

in this regard. [7] Aside from what we have addressed herein, we deny Powell’s petition for

rehearing.

Bradford, C.J., and Pyle, J., concur.

2 We think, perhaps, that Powell has mistaken the summary suspension of his license for a summary judgment.

Court of Appeals of Indiana | Mem. Dec. on Rehearing 19A-MI-1568 | June 30, 2020 Page 4 of 4