MEMORANDUM DECISION                                                             FILED
                                                                            Apr 10 2018, 9:25 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                                    CLERK
                                                                            Indiana Supreme Court
precedent or cited before any court except for the                             Court of Appeals
                                                                                 and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
David F. McNamar                                       Curtis T. Hill, Jr.
McNamar & Associates, P.C.                             Attorney General of Indiana
Westfield, Indiana
                                                       Evan Matthew Comer
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Paul J. Elmer,                                             April 10, 2018

Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           49A05-1711-PL-2697

        v.                                                 Appeal from the Marion Superior
                                                           Court
Indiana Pharmacy Board,                                    The Honorable David J. Dreyer,
                                                           Judge
Appellee-Respondent.
                                                           Trial Court Cause No.
                                                           49D10-1709-PL-34090




Bradford, Judge




Court of Appeals of Indiana | Memorandum Decision 49A05-1711-PL-2697 | April 10, 2018               Page 1 of 5
                                           Case Summary
[1]   In August of 2017, Appellee-Respondent the Indiana Pharmacy Board (“the

      Board”) suspended the pharmacy license of Appellant-Petitioner Paul Elmer for

      ninety days following his indictment by a federal grand jury. Elmer petitioned

      for judicial review, and, when his petition was denied and the Board extended

      his suspension, he filed an amended petition and timely moved for a change of

      judge. The trial court did not grant Elmer a change of judge and eventually

      granted the Board’s motion to dismiss the amended complaint. While both

      parties make arguments on the merits, we need not address them, as they agree

      that the trial court did not have the discretion to deny Elmer’s timely motion for

      a change of judge. We reverse the trial court’s dismissal of Elmer’s amended

      petition and remand with instructions to grant his motion for change of judge.



                            Facts and Procedural History
[2]   On July 5, 2017, the State of Indiana petitioned the Board for summary

      suspension of Elmer, alleging that he was “a clear and immediate danger to the

      public health and safety if allowed to operate as a R.Ph. in Indiana.”

      Appellant’s App. Vol. II p. 91. A federal grand jury had indicted Elmer for

      violations of federal drug laws by prior to the filing of this petition. On August

      9, 2017, following a hearing, the Board suspended Elmer’s pharmacy license for

      ninety days (“the First Suspension”). On September 6, 2017, Elmer petitioned

      for judicial review and moved for a stay of the First Suspension. On September



      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-PL-2697 | April 10, 2018   Page 2 of 5
      19, 2017, the Board moved to dismiss Elmer’s petition, and the trial court

      dismissed the case on October 4, 2017.


[3]   Meanwhile, on October 2, 2017, the Board held a second hearing, after which it

      suspended Elmer’s pharmacist license for another ninety days (“the Second

      Suspension”). On October 10, 2017, Elmer filed an amended petition for

      judicial review and a motion for change of judge. On October 19, 2017, the

      Board filed a notice reserving all affirmative defenses in response to Elmer’s

      amended pleading and moved to dismiss Elmer’s amended petition. The trial

      court granted the Board’s motion to dismiss Elmer’s amended petition on

      October 24, 2017.


                                 Discussion and Decision
[4]   Elmer appeals from the trial court’s grant of the Board’s motion to dismiss his

      amended petition for judicial review. We need not reach that claim, however,

      as Elmer also contends that the trial court erred in not granting his motion for

      change of judge, a contention with which the Board agrees. The parties

      seemingly only differ on the effect of this: While Elmer would also have us

      review the merits of his claims, the Board contends that all we should do is

      remand for a change of judge. We agree with the Board.


[5]   Indiana Rule of Trial Procedure 76 provides, in part, as follows:


              (B) In civil actions, where a change may be taken from the
              judge, such change shall be granted upon the filing of an
              unverified application or motion without specifically stating the
              ground therefor by a party or his attorney.
      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-PL-2697 | April 10, 2018   Page 3 of 5
              ….
              (C) In any action except criminal no change of judge or change
              of venue from the county shall be granted except within the time
              herein provided. Any such application for change of judge (or
              change of venue) shall be filed not later than ten [10] days after
              the issues are first closed on the merits. Except:
                   (1) in those cases where no pleading or answer may be
                   required to be filed by the defending party to close issues (or
                   no responsive pleading is required under a statute), each party
                   shall have thirty [30] days from the date the case is placed and
                   entered on the chronological case summary of the court as
                   having been filed[.]
      (First two sets of brackets in original).


[6]   Although the parties disagree on some details, such as whether the provisions of

      subsections (C) or (C)(1) of Trial Rule 76 apply, both agree that the motion for

      change of judge was timely. Once the motion for change of judge was timely

      filed, the trial court simply had no jurisdiction to dismiss the petition—or do

      anything else, for that matter—except grant the motion for change of judge.

      “When a party files a motion for a change of judge, the trial court is divested of

      jurisdiction except to grant the change or act on emergency matters.” A.T. v.

      G.T., 960 N.E.2d 878, 881 (Ind. Ct. App. 2012). Because neither party alleges

      that there were any emergency matters present in this case, we reverse the

      judgment of the trial court and remand with instructions to grant Elmer’s




      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-PL-2697 | April 10, 2018   Page 4 of 5
      motion for change of judge and to reinstate the amended petition for judicial

      review.1


[7]   The judgment of the trial court is reversed and we remand with instructions.


      Baker, J., and Kirsch, J., concur.




      1
         Elmer also argues that the trial court erred in dismissing his original petition for judicial review and that his
      suspensions were not supported by sufficient admissible evidence. The Board seemingly also argues that the
      trial court correctly dismissed Elmer’s amended petition for lack of subject matter jurisdiction. It is not
      necessary to address these claims, however, as the amended petition has been reinstated by this opinion.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-PL-2697 | April 10, 2018                   Page 5 of 5
