                                                                                 FILED
                                                                          Apr 05 2016, 9:35 am

                                                                                 CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE
      Volney Brand                                             Gregory F. Zoeller
      Brand Law PLLC                                           Attorney General of Indiana
      Dallas, Texas
                                                               Justin F. Roebel
      Brad Johnson                                             Deputy Attorney General
      Seymour, Indiana                                         Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Pain Medicine and                                        April 5, 2016
      Rehabilitation Center and                                Court of Appeals Case No.
      Anthony Alexander, M.D.,                                 36A01-1508-CR-1107
      Appellants-Defendants,                                   Appeal from the Jackson Circuit
                                                               Court
              v.                                               The Honorable Richard W.
                                                               Poynter, Judge
      State of Indiana,                                        Trial Court Cause No.
      Appellee-Plaintiff.                                      36C01-1505-MC-137




      Najam, Judge.


                                       Statement of the Case
[1]   In February of 2015, the State, acting through its Medicaid Fraud Control Unit

      and in accordance with various federal, state, and local agencies, opened a

      criminal cause of action against Pain Medicine and Rehabilitation Center and

      Court of Appeals of Indiana | Opinion 36A01-1508-CR-1107 | April 5, 2016                     Page 1 of 7
      Dr. Anthony Alexander (collectively, “PMRC”) for the sole purpose of

      enforcing a subpoena duces tecum against PMRC. In response, PMRC filed a

      motion for a preliminary injunction against the State, which the trial court

      denied without a hearing. PMRC purports to appeal from that judgment, but

      we hold that PMRC’s motion in the trial court was not procedurally correct

      and, in turn, that this appeal is not properly before us.


[2]   We dismiss.


                                   Facts and Procedural History
[3]   After receiving numerous complaints with respect to prescriptions issued by

      PMRC and PMRC’s billing practices, in February of 2015 the State served

      PMRC with a subpoena duces tecum, which demanded the complete medical

      records of all of PMRC’s patients seen on six particular dates and the complete

      medical records of approximately eighty other patients. PMRC refused to

      comply, and, on March 7, the State opened a miscellaneous criminal cause

      against PMRC for the sole purpose of having the court compel PMRC to

      comply with the subpoena.1 Although the trial court initially granted the State’s

      motion to compel, at PMRC’s request the court later set aside that order.


[4]   On June 1, PMRC filed its motion for a preliminary injunction. In its motion,

      PMRC sought to enjoin the State from “proceeding in [its] investigation” on the




      1
        Indiana Code Section 4-6-10-3 (2015) permits the State to “issue, serve, and apply to a court to enforce, a
      subpoena . . . to produce books, papers, or other records . . . for inspection and examination.”

      Court of Appeals of Indiana | Opinion 36A01-1508-CR-1107 | April 5, 2016                            Page 2 of 7
      theory that the State’s investigation of PMRC was not “within [the State’s]

      statutory and constitutional authority.” Appellee’s App. at 1. The State

      responded to PMRC’s motion in due course. Without holding a hearing, on

      July 16, 2015, the trial court denied PMRC’s motion for a preliminary

      injunction in a general order. This appeal ensued.


                                         Discussion and Decision
[5]   PMRC asserts that the trial court erred when it denied PMRC’s motion for a

      preliminary injunction. But the State asserts that this appeal is not properly

      before this court. We agree with the State.2


[6]   It is well established that the authority of the Indiana Supreme Court and Court

      of Appeals to exercise appellate jurisdiction is generally limited to appeals from

      final judgments. Ind. Newspapers, Inc. v. Miller, 980 N.E.2d 852, 857 (Ind. Ct.

      App. 2012), aff’d on reh’g (2013), trans. denied. “‘Succinctly stated, a final

      judgment disposes of all issues as to all parties thereby ending the particular

      case.’” Id. (quoting Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003)).

      “Appellate jurisdiction may also lie from certain nonfinal, interlocutory

      orders.” Id. Indiana Appellate Rule 14(A) “defines a specific class of

      interlocutory orders that may be appealed as of right without prior certification

      from the trial court,” such as orders granting or refusing to grant a preliminary

      injunction. Id. at 857 n.4; see Ind. Appellate Rule 14(A)(5). “An appeal may be




      2
          We reject PMRC’s suggestion that we cannot consider our jurisdiction in the first instance on appeal.


      Court of Appeals of Indiana | Opinion 36A01-1508-CR-1107 | April 5, 2016                            Page 3 of 7
      taken from other interlocutory orders if the trial court certifies its order and the

      Court of Appeals accepts jurisdiction over the appeal.” App. R. 14(B). “An

      appeal from an interlocutory order is not allowed unless specifically authorized

      by the Indiana Constitution, statutes, or the rules of court.” Allstate Ins. Co. v.

      Scroghan, 801 N.E.2d 191, 193 (Ind. Ct. App. 2004). “The authorization is to

      be strictly construed, and any attempt to perfect an appeal without such

      authorization warrants a dismissal.” Id.


[7]   We initially note both what this action is and what it is not. This action exists

      only because the State, pursuant to statutory authority, applied to the trial court

      for the enforcement of the State’s subpoena duces tecum under a criminal cause

      number after PMRC had refused to comply voluntarily with that subpoena. See

      Ind. Code § 4-6-10-3 (2015). The State has not filed criminal charges against

      PMRC. See, e.g., Oman v. State, 737 N.E.2d 1131, 1134 (Ind. 2000) (reviewing a

      subpoena duces tecum on interlocutory appeal following the trial court’s denial of

      the defendant’s motion to suppress and certification of its order for

      interlocutory review); Sweeney v. State, 704 N.E.2d 86, 108 (Ind. 1998)

      (reviewing the trial court’s decision to quash the defendant’s subpoena duces

      tecum on direct appeal following the defendant’s conviction). And PMRC has

      not opened a civil cause of action against the State seeking, for example,




      Court of Appeals of Indiana | Opinion 36A01-1508-CR-1107 | April 5, 2016     Page 4 of 7
      declaratory or injunctive relief to enjoin an investigation.3 See, e.g., Planned

      Parenthood v. Carter, 854 N.E.2d 853, 862 (Ind. Ct. App. 2006).


[8]   As such, while PMRC sought in its motion for a preliminary injunction to

      enjoin the State from “proceeding in [its] investigation,” the entirety of the

      State’s “investigation” against PMRC was not before the trial court.4 See

      Appellee’s App. at 1. Rather, the trial court had before it only the question of

      enforcing the subpoena. Thus, while PMRC’s motion simply sought to have

      the trial court quash or modify the subpoena, PMRC styled the motion as a

      request for a preliminary injunction under Indiana Trial Rule 65.


[9]   But we have other rules of procedure for such matters. In particular, Indiana

      Criminal Rule 2 permits the State to obtain subpoenas duces tecum in the course

      of criminal investigations. That Rule expressly permits the party to whom the

      subpoena is directed to move the court to “quash or modify the subpoena if it is

      unreasonable and oppressive.” Ind. Crim. Rule 2(1). Our Criminal Rules also

      permit a rule of trial procedure to apply in criminal proceedings, but only “so

      far as they are not in conflict with any specific rule adopted . . . for the conduct

      of criminal proceedings.” Crim. R. 21. With respect to subpoenas duces tecum,

      our Trial Rules state that the court, “upon motion made promptly and in any




      3
        PMRC does not suggest that it is permitted to file a counter-claim against the State in a criminal cause of
      action against it.
      4
        Indeed, prior to the State’s issuance of the subpoena, under another cause number the trial court had issued
      a search warrant for PMRC’s facilities.

      Court of Appeals of Indiana | Opinion 36A01-1508-CR-1107 | April 5, 2016                            Page 5 of 7
       event at or before the time specified in the subpoena for compliance therewith,

       may (1) quash or modify the subpoena if it is unreasonable or oppressive . . . .”

       Ind. Trial Rule 45(B). And, with respect to discovery generally, our Trial Rules

       state that the court, “[u]pon motion by any party . . . from whom discovery is

       sought, and for good cause shown, . . . may make any order which justice

       requires to protect a party . . . from annoyance, embarrassment, oppression, or

       undue burden or expense . . . .” T.R. 26(C). Trial Rule 26(C) then provides

       nine examples in which such a protective order might be justified, such as “that

       the discovery not be had,” “that certain matters not be inquired into, or that the

       scope of the discovery be limited . . . .” Id.


[10]   PMRC did not challenge the State’s subpoena duces tecum—again, the only

       matter actually before the trial court in this limited criminal cause—under

       Criminal Rule 2, under Trial Rule 45(B) (with respect to subpoenas duces tecum

       specifically), or even under Trial Rule 26(C) (with respect to discovery

       generally). Instead, PMRC ignored the subpoena outright and then moved for

       a preliminary injunction against the State pursuant to Trial Rule 65. We

       conclude that this use of Trial Rule 65 conflicts with the specific procedure for

       challenging a subpoena prescribed in Criminal Rule 2. Accordingly, under

       Criminal Rule 21, PMRC’s attempted use of Trial Rule 65 was not procedurally

       correct.


[11]   Thus, we agree with the State that PMRC’s appeal is not properly before us.

       First, the trial court’s general denial of PMRC’s procedurally incorrect motion

       was not a final judgment. Again, a final judgment “disposes of all issues as to

       Court of Appeals of Indiana | Opinion 36A01-1508-CR-1107 | April 5, 2016   Page 6 of 7
       all parties thereby ending the particular case.” Ind. Newspapers, Inc., 980 N.E.2d

       at 857 (quotations omitted). Here, the only dispute the trial court has been

       asked to rule on is a discovery dispute. And to conclude that this limited cause

       of action resolved “all issues as to all parties thereby ending the particular case”

       would mean that all discovery disputes brought pursuant to Indiana Code

       Section 4-6-10-3 would be immediately appealable, contrary to long-standing

       Indiana law that prohibits “an appeal as of right from every order to produce

       documents during discovery.” State v. Hogan, 582 N.E.2d 824, 825 (Ind. 1991).

       Second, as explained above, while PMRC styled its motion in the trial court as

       a motion for a preliminary injunction, that was incorrect. Accordingly, PMRC

       is not entitled to an appeal as of right under Indiana Appellate Rule 14(A)(5).

       Because there is no other basis for appellate jurisdiction, we dismiss.


[12]   Dismissed.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 36A01-1508-CR-1107 | April 5, 2016    Page 7 of 7
