Andrew Hunter v. State of Indiana, Department of Transportation

FILED
Dec 29 2016, 8:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Samuel M. Adams Gregory F. Zoeller
Paul A. Logan Attorney General of Indiana
John H. Haskin & Associates
Indianapolis, Indiana Kyle Hunter
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andrew Hunter, December 29, 2016
Appellant-Petitioner, Court of Appeals Case No.
49A02-1604-PL-978
v. Appeal from the Marion Superior
Court
State of Indiana, Department of The Honorable John F. Hanley,
Transportation, Judge
Appellee-Respondent Trial Court Cause No.
49D11-1509-PL-30861
Crone, Judge.
Case Summary
[1] Andrew Hunter was terminated from his employment with the Indiana
Department of Transportation (“INDOT”). His administrative appeals were
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unsuccessful, and he filed a petition for judicial review. INDOT filed a motion
to dismiss the petition as untimely, which the trial court granted.
[2] On appeal, Hunter contends that the trial court erred in granting INDOT’s
motion to dismiss, claiming that the petition was timely filed. In the
alternative, he argues that the untimely filing of a petition is a procedural error,
not a jurisdictional error; that INDOT failed to preserve the timeliness issue by
not raising it as an affirmative defense; and that, in any event, he should be
allowed to demonstrate good cause to excuse the untimely filing. We conclude
that the petition was untimely filed; that the error is procedural, not
jurisdictional; that the trial court could consider the timeliness issue even if
INDOT failed to preserve it; and that because Hunter’s petition was untimely
filed, he has waived his right to judicial review and is not entitled to
demonstrate good cause to excuse the untimely filing. Therefore, we affirm.
Facts and Procedural History
[3] The relevant facts are undisputed. INDOT terminated Hunter’s employment in
November 2013. Hunter unsuccessfully challenged his termination through the
administrative appeals process under the Administrative Orders and Procedures
Act, Indiana Code Article 4-21.5 (“AOPA”). Ultimately, on August 13, 2015,
the State Employees’ Appeal Commission (“SEAC”) issued and served on the
parties by mail a final order affirming the administrative law judge’s ruling in
favor of INDOT.
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[4] On September 16, 2015, Hunter filed a petition for judicial review of SEAC’s
order. INDOT filed a response to Hunter’s petition and subsequently filed a
motion to dismiss for failure to state a claim under Indiana Trial Rule 12(B)(6),
in which it argued for the first time that Hunter’s petition was untimely filed.
After a hearing, the trial court granted INDOT’s motion to dismiss. Hunter
filed a motion to correct error, which the trial court denied. This appeal
ensued.
Discussion and Decision
[5] Hunter argues that the trial court erred in granting INDOT’s motion to dismiss.
“The standard of review on appeal of a trial court’s grant of a motion to dismiss
for the failure to state a claim is de novo and requires no deference to the trial
court's decision.” Bellows v. Bd. of Comm’rs, 926 N.E.2d 96, 110 (Ind. Ct. App.
2010). “The grant or denial of a motion to dismiss turns only on the legal
sufficiency of the claim and does not require determinations of fact.” Id.Section 1 – Hunter’s petition for judicial review was untimely
filed.
[6] Hunter first argues that his petition was timely filed. Indiana Code Section 4-
21.5-5-5 states, “Except as otherwise provided, 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.” Indiana
Code Section 4-21.5-3-2 governs time computation under AOPA and reads in
relevant part as follows:
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(a) In computing any period of time under this article, the day of
the act, event, or default from which the designated period of
time begins to run is not included. The last day of the computed
period is to be included unless it is:
(1) a Saturday;
(2) a Sunday;
(3) a legal holiday under a state statute; or
(4) a day that the office in which the act is to be done is closed
during regular business hours.
(b) A period runs until the end of the next day after a day
described in subsection (a)(1) through (a)(4).…
(c) A period of time under this article that commences when a
person is served with a paper, including the period in which a
person may petition for judicial review, commences with respect
to a particular person on the earlier of the date that:
(1) the person is personally served with the notice; or
(2) a notice for the person is deposited in the United States mail.
….
(e) If a notice is served through the United States mail, three (3)
days must be added to a period that commences upon service of
that notice.
[7] Whether Hunter’s petition was timely filed is a matter of statutory
interpretation, which we review de novo. K.T.P. ex rel. A.S.P. v. Atchison, 848
N.E.2d 280, 283 (Ind. Ct. App. 2006). “A statute which is clear and
unambiguous must be read to mean what it plainly expresses, and its plain and
obvious meaning will not be enlarged or restricted.” Id. We find Indiana Code
Section 4-21.5-3-2 to be clear and unambiguous. Because notice of SEAC’s
final order was served through the United States mail on August 13, three days
must be added to the thirty-day period for filing a petition for judicial review
that commenced upon service of that notice, which results in a period of thirty-
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three days. Ind. Code § 4-21.5-3-2(e). Pursuant to the clear statutory language,
that period began to run on August 14, and the last day of that period was
Tuesday, September 15. Hunter filed his petition on September 16, and
therefore it was untimely.
Section 2 – The untimely filing of a petition for judicial review
is a procedural error, not a jurisdictional error.
[8] We must now consider whether the untimely filing of a petition for judicial
review under AOPA is a procedural error, as Hunter claims, which could be
waived if not raised at the appropriate time, or a jurisdictional error, as INDOT
claims, which would deprive the trial court of authority to rule on Hunter’s
petition. Based on a decade of precedent that has clarified the differences
between the two, we find the error to be procedural.
[9] In K.S. v. State, 849 N.E.2d 538 (Ind. 2006), our supreme court explained that
“Indiana trial courts possess two kinds of ‘jurisdiction.’ Subject matter
jurisdiction is the power to hear and determine cases of the general class to
which any particular proceeding belongs. Personal jurisdiction requires that
appropriate process be effected over the parties.” Id. at 540. “Attorneys and
judges alike frequently characterize a claim of procedural error as one of
jurisdictional dimension.” Id. at 541. “Real jurisdictional problems would be,
say, a juvenile delinquency adjudication entered in a small claims court, or a
judgment rendered without any service of process. Thus, characterizing other
sorts of procedural defects as ‘jurisdictional’ misapprehends the concepts.” Id.
at 542.
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[10] In this case, “[t]here is no dispute that the trial court had jurisdiction over the
general class of actions at issue here—petitions for judicial review of agency
actions.” St. Joseph Hosp. v. Cain, 937 N.E.2d 903, 906 (Ind. Ct. App. 2010),
trans. vacated. Also, there is no dispute that appropriate process was effected
over the parties. Moreover, the pertinent statute, Indiana Code Section 4-21.5-
5-4, is written in terms of waiver and not subject matter jurisdiction. 1 See Ind.
Code § 4-21.5-5-4(b) (providing that a person who fails to timely petition for
judicial review “has waived the person’s right to judicial review under this
chapter.”). In Cain, we held that the petitioner’s failure to file a verified petition
for judicial review, as required by AOPA, 2 was “accurately described as a
‘procedural error’” and not an error that deprived the trial court of subject
1
In Packard v. Shoopman, 852 N.E.2d 927 (Ind. 2006), our supreme court held that the untimely filing of a
petition for review in the Indiana Tax Court was a procedural error, even though the relevant statute
provided, “‘If a taxpayer fails to comply with any statutory requirement for the initiation of an original tax
appeal, the tax court does not have jurisdiction to hear the appeal.’” Id. at 929 (quoting Ind. Code § 33-26-6-
2 (2004)). The Packard court explained,
The statutory provision for timely filing in the Tax Court found in Indiana Code section 33-26-
6-2 predates our decision in K.S. and was enacted at a time when Indiana courts commonly
used the phrase “jurisdiction over the particular case” to refer to various procedural
prerequisites to the exercise of subject matter jurisdiction. We conclude that when section 33-
26-6-2 was passed, the General Assembly used “jurisdiction” to refer to the now abolished
“jurisdiction over the particular case,” i.e. procedural prerequisites that can be waived or
procedurally defaulted if not timely raised.
Id. at 930. To the extent INDOT suggests that our supreme court has unconstitutionally circumvented the
legislature’s limitations on trial court jurisdiction via K.S., Packard, and subsequent cases, see Appellee’s Br. at
19-20, we note that the legislature has not amended any statutes in response to those cases or otherwise
indicated any disagreement with our supreme court on this issue.
2
See Ind. Code § 4-21.5-5-7(b) (stating that “[a] petition for review must be verified”). The petition in Cain
was unverified but timely filed, and we held that a verification could be added by amendment, which would
relate back to the date of the filing of the original petition. 937 N.E.2d at 909. The appellee in Cain did not
argue that a party waives its right to judicial review under Indiana Code Section 4-21.5-5-4(b) by filing a
timely but unverified petition.
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matter jurisdiction. 937 N.E.2d at 907. Based on the foregoing precedent, we
conclude that a petitioner’s failure to timely file a petition for judicial review is
also a procedural error and not a jurisdictional error. Cf. In re Adoption of O.R.,
16 N.E.3d 965, 971 (Ind. 2014) (“The untimely filing of a Notice of Appeal is
not a jurisdictional defect depriving the appellate courts of the ability to
entertain an appeal.”); Packard v. Shoopman, 852 N.E.2d 927, 931-32 (Ind. 2006)
(“Because the timeliness of filing does not affect the subject matter jurisdiction
of the Tax Court, any objection to the timeliness of filing is a procedural rather
than jurisdictional error that can be waived if not raised at the appropriate
time.”) (citing K.S., 849 N.E.2d at 542). 3
Section 3 – Assuming that INDOT failed to preserve the
timeliness issue by not raising it as an affirmative defense, the
trial court nevertheless could have considered the issue and
found that Hunter waived his right to judicial review.
[11] Hunter asserts that untimeliness is an affirmative defense that INDOT was
required to plead in its response to his petition pursuant to Indiana Trial Rule
8(C) and therefore INDOT failed to preserve the issue. See Ind. Trial Rule 8(C)
(“A responsive pleading shall set forth affirmatively and carry the burden of
3
The cases that INDOT relies on in asserting that the timeliness of a petition for judicial review is
jurisdictional predate our supreme court’s opinions in K.S. and Packard by a decade or more, and therefore
we do not find them persuasive. See Appellee’s Br. at 16 (citing Bowman v. Ind. State Bd. of Nursing, 663
N.E.2d 1217 (Ind. Ct. App. 1996), and State v. Van Ulzen, 456 N.E.2d 459 (Ind. Ct. App. 1983), trans. denied).
Nor are we persuaded by INDOT’s attempt to distinguish K.S. and Packard based on the “specialized
jurisdiction” of the juvenile and tax courts in those cases. Id. at 17. The Packard court “acknowledge[d] that
statutory ‘jurisdictional’ requirements in other statutes may require a different result” than the one reached in
that case, 852 N.E.2d at 931, but Indiana Code Section 4-21.5-5-4(b) does not require a different result here.
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proving: … statute of limitations … and any other matter constituting an
avoidance, matter of abatement, or affirmative defense. A party required to
affirmatively plead any matters, including matters formerly required to be
pleaded affirmatively by reply, shall have the burden of proving such matters.”);
Packard, 852 N.E.2d at 932 (“We think that a challenge to the timeliness of the
filing of the petition for review in the Tax Court is analogous to the statute of
limitations and is in the nature of a ‘matter constituting an avoidance, matter of
abatement or affirmative defense.’”). Assuming for argument’s sake that
Hunter is correct, 4 the trial court nevertheless could have considered the issue
and found that he waived his right to judicial review pursuant to Indiana Code
Section 4-21.5-5-4(b). See Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002)
(“[A]lthough a party who has failed to plead or prove a Rule 8(C) affirmative
defense has no right to prevail on that basis, the party may nevertheless suggest
to the court that procedural default of an issue is an appropriate basis to affirm
the judgment below.”).
Section 4 – Hunter is not entitled to demonstrate good cause to
excuse the untimely filing of his petition.
[12] Finally, Hunter argues that because the untimely filing of a petition for judicial
review under AOPA is not a jurisdictional error, the trial court should give him
4
INDOT notes that neither AOPA nor the Trial Rules require that a response be filed to a petition for
judicial review; that it “expressly reserved” its rights and defenses in its response to Hunter’s petition pending
the filing of the agency record; and that it filed its motion to dismiss two days after the record was filed with
the trial court. Appellee’s Br. at 25 (quoting Appellant’s App. at 29).
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an “opportunity to demonstrate good cause to excuse the untimely filing.”
Appellant’s Br. at 21. Hunter’s argument is premised on our supreme court’s
opinion in O.R., 16 N.E.3d 965. 5 In that case, a child’s biological father
contested a petition for adoption, which was granted, and this Court dismissed
the father’s appeal based on lack of subject matter jurisdiction because the
notice of appeal had been untimely filed. Our supreme court granted transfer
and revisited the long line of precedent holding that “a party's failure to file
timely the necessary papers deprived the appellate courts of jurisdiction to
entertain the appeal” in light of its relatively recent clarification of jurisdictional
concepts in K.S. and subsequent cases. Id. at 969. The court noted that Indiana
Appellate Rule 9(A), which gives a party thirty days to file a notice of appeal
after the entry of a final judgment, “does not mention jurisdiction at all.” Id. at
970; see Ind. Appellate Rule 9(A)(5) (“Unless the Notice of Appeal is timely
filed, the right to appeal shall be forfeited except as provided by [Postconviction
Rule] 2.”). The court further noted that “[f]orfeiture and jurisdiction are not the
same” and went on to say,
In essence a party loses his or her right to appeal for failing to file
timely a Notice of Appeal. The Rule is clear that under such
circumstance “the right to appeal shall be forfeited.” App. R.
9(A)(5). But a party’s forfeiture—or loss of this right—does not
also mean the appellate courts somehow lose their authority to
hear and determine the general class of cases to which a party’s
case belongs or over the party attempting to assert its right of
5
Hunter did not cite O.R. in his response to INDOT’s motion to dismiss or in his motion to correct error, but
INDOT does not assert that he is precluded from doing so on appeal.
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appeal. Stated somewhat differently, although a party forfeits its
right to appeal based on an untimely filing of the Notice of
Appeal, this untimely filing is not a jurisdictional defect depriving
the appellate courts of authority to entertain the appeal. Rather,
the right to appeal having been forfeited, the question is whether
there are extraordinarily compelling reasons why this forfeited
right should be restored.
O.R., 16 N.E.3d at 970, 971.
[13] The court gave three reasons for finding that the appellant’s forfeited right to
appeal should be restored. The court first noted that the rules of appellate
procedure “exist to facilitate the orderly presentation and disposition of
appeals” and “are merely means for achieving the ultimate end of orderly and
speedy justice.” Id. at 971, 972. That policy had been incorporated into
Appellate Rule 1, which permits the appellate court to deviate from the rules
upon a party’s or the court’s own motion; “[t]hus, despite the ‘shall be forfeited’
language of Rule 9(A), the Rules themselves provide a mechanism allowing this
Court to resurrect an otherwise forfeited appeal.” Id. at 972. Next, the court
noted that the appellant sought appointment of appellate counsel four days
before the notice of appeal was due, counsel was appointed long after the
deadline, and the motions panel of this Court accepted counsel’s amended
notice of appeal. Finally, “and perhaps most important,” the court
acknowledged the fundamental liberty interests at stake in the appellant’s
attempt to maintain his status as the legal father of his child. Id. The court
remarked, “It is this unique confluence of a fundamental liberty interest along
with ‘one of the most valued relationships in our culture’ that has often
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influenced this Court as well as our Court of Appeals to decide cases on their
merits rather than dismissing them on procedural grounds,” and concluded that
the appellant’s “otherwise forfeited appeal deserves a determination on the
merits.” Id.
[14] In this case, Indiana Code Section 4-21.5-5-4(b) provides that a person who fails
to timely file a petition for judicial review “has waived the person’s right to
judicial review under this chapter.” Waiver has been defined as “[t]he
voluntary relinquishment or abandonment — express or implied — of a legal
right or advantage; FORFEITURE”). BLACK’S LAW DICTIONARY (10th ed.
2014). Like Appellate Rule 9(A), Indiana Code Section 4-21.5-5-4(b) does not
mention jurisdiction at all. But we find it significant that AOPA “establishes
the exclusive means for judicial review of an agency action,” Ind. Code § 4-
21.5-5-1, and it does not include a provision similar to Appellate Rule 1 that
permits deviation from AOPA’s procedural rules. In fact, Indiana Code
Section 4-21.5-2-2 provides, “Except to the extent precluded by a law, a person
may waive any right conferred upon that person by this article. This section
does not permit the waiver of any procedural duty imposed by this article.”
Thus, there is no mechanism allowing the trial court to resurrect a waived right
to judicial review. 6 Therefore, we do not find O.R. persuasive. Consequently,
we hold that Hunter is not entitled to demonstrate that he has good cause to
6
INDOT points out that Indiana Code Section 4-21.5-5-13(b) allows a petitioner to request an extension of
time in which to file the agency record with the trial court and that Indiana Code Section 4-21.5-5-4 does not
contain a similar provision for a petition for judicial review.
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excuse the untimely filing of his petition. 7 We affirm the trial court’s grant of
INDOT’s motion to dismiss Hunter’s untimely petition for judicial review.
[15] Affirmed.
Riley, J., and Altice, J., concur.
7
Nevertheless, we note that, unlike the appellant in O.R., Hunter has been represented by the same attorney
throughout the administrative and judicial proceedings. We further note that Hunter has not asserted that
fundamental liberty interests are at stake here.
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