FOR PUBLICATION


ATTORNEY FOR APPELLANT:
                                                        Mar 27 2014, 9:51 am
ADAM J. SEDIA
Rubino, Ruman, Crosmer & Polen
Dyer, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

DOUGLAS J. ALLISON,                          )
                                             )
      Appellant-Respondent,                  )
                                             )
             vs.                             )      No. 64A05-1311-PO-554
                                             )
HEATHER PEPKOWSKI,                           )
                                             )
      Appellee-Petitioner.                   )


                   APPEAL FROM THE PORTER SUPERIOR COURT
                         The Honorable Julia M. Jent, Judge
                          Cause No. 64D03-1308-PO-7674



                                   March 27, 2014


                             OPINION - FOR PUBLICATION


DARDEN, Senior Judge
                              STATEMENT OF THE CASE

       The trial court continued the hearing on a protective order petition and extended

the temporary protective order for six months after the petitioner suffered an apparent

anxiety attack while on the witness stand.        Although the circumstances justified a

continuance and extension, the delay of six months without explanation runs contrary to

the Indiana Civil Protection Order Act and violates the respondent’s due process rights.

In any event, because the court’s extension granted a temporary restraining order, which

is not appealable as of right, the respondent was required to seek a discretionary

interlocutory appeal. Because he did not do so, we must dismiss this appeal for lack of

jurisdiction.

                        FACTS AND PROCEDURAL HISTORY

       On August 26, 2013, Heather Pepkowski petitioned the Porter Superior Court for

an ex parte protective order against her neighbor Douglas Allison, alleging that Allison

had engaged in harassing behavior toward her and her mother constituting stalking. The

petition requested a hearing. The same day, the trial court granted the ex parte protective

order and set the matter for a hearing on October 10, 2013.

       Pepkowski and Allison each appeared in person and by counsel for the October

10, 2013 hearing. Allison had seven witnesses ready to testify on his behalf. Pepkowski

was the first and, as it turned out, the only person to testify. During redirect examination,

the trial court became concerned for Pepkowski’s physical well-being while on the

witness stand and thus continued the hearing:



                                             2
      Q      And just so we’re clear – you okay?
      BY THE COURT:
             You okay?
      Q      You want to take a break?
      BY THE COURT:
             Let me call security in.
      BY PETITIONER’S ATTORNEY:
             Breathe[ ] slowly, it’s okay, every things [sic] fine.
      BY THE WITNESS:
             I need my mom.
      BY THE COURT:
             I think maybe we ought to wrap this up for today. I have some issue,
      I have some concerns with your well being. There’s a hospital emergency
      room right next door. Do you feel you need to go in? Do you want us to
      call someone? Mom, do you think we need to call an ambulance? Let’s do
      that. Let me reset this counsel, we’ll take care of that later as far as time
      and dates are concerned. I think we need to get her medical attention. I’m
      not going to take any chances here, we’ve had too many issues.
      BY THE WITNESS:
             I’m sorry.
      BY THE COURT:
             It’s okay. It’s absolutely okay, has no bearing one way or another on
      your case. We just want to make sure everyone stays healthy. I want to see
      counsel[ ] in chambers right now, and then we’ll get a new court date for
      you guys. Larry is an EMT so he knows what to do here. Okay, and we’ll
      get you new dates.

Tr. pp. 28-29. The same day, the trial court issued an order resetting the hearing for six

months later on April 10, 2014, and extending the temporary protective order until that

time. The record does not indicate that Allison objected to the court’s order. Allison

now appeals, asserting that he has a right to do so pursuant to Indiana Appellate Rule

14(A)(5).

                            DISCUSSION AND DECISION

      Allison does not challenge the trial court’s continuance of the hearing or extension

of the temporary protective order pending the hearing. Rather, he challenges the length


                                            3
of the delay, contending the court’s continuance and extension for six months runs

contrary to the Indiana Civil Protection Order Act, which aims to provide prompt

resolutions to protective order petitions. He thus asks us to dismiss Pepkowski’s action.

       We initially note that Pepkowski has not filed a brief. When an appellee fails to

submit a brief, we need not undertake the burden of developing arguments on her behalf.

Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). Instead, we apply a

less stringent standard of review with respect to showings of reversible error and reverse

if the appellant establishes prima facie error. Id. Prima facie error in this context is an

error at first sight, on first appearance, or on the face of it. Id.

       Indiana’s Civil Protection Order Act is to be construed to promote (1) the

protection and safety of all victims of domestic or family violence “in a fair, prompt, and

effective manner” and (2) the prevention of future domestic and family violence. Ind.

Code § 34-26-5-1 (2002).

       A person who is or has been a victim of domestic or family violence may file a

petition for a protective order against (1) a family or household member who commits an

act of domestic or family violence or (2) a person who has committed stalking or a sex

offense against the petitioner. Ind. Code § 34-26-5-2(a) (2002). If it appears from a

protective order petition “that domestic or family violence has occurred,” a trial court

may immediately issue an ex parte protective order without notice or a hearing. Ind.

Code § 34-26-5-9(a)(1) (2010). For purposes of the Civil Protection Order Act, domestic

and family violence includes stalking or a sex offense “whether or not the stalking or sex



                                                4
offense is committed by a family or household member.” Ind. Code § 34-6-2-34.5

(2007).

        Indiana Code section 34-26-5-9(b) sets forth the type of relief a trial court may

provide in an ex parte order. If such ex parte relief is granted, a prompt hearing is

required upon a party’s timely request:

        [I]f a court issues . . . an order for protection ex parte . . . and provides relief
        under section 9(b) of this chapter, upon a request by either party not more
        than thirty (30) days after service of the order . . ., the court shall set a date
        for a hearing on the petition. The hearing must be held not more than thirty
        (30) days after the request for a hearing is filed unless continued by the
        court for good cause shown.

Ind. Code § 34-26-5-10(a) (2002). On August 26, 2013, Pepkowski petitioned for a

protective order and requested a hearing. The trial court issued an ex parte protective

order, granting relief under three provisions of Section 9(b). 1 Pursuant to Section 34-26-

5-10(a), the hearing should have been held by September 25, 2013. Although it was not

held until fifteen days later on October 10, 2013, neither party objected to the delay.

        At the hearing, Pepkowski suffered what appears to be some type of anxiety attack

while on the witness stand. The trial court thus ended the hearing and reset the matter for

six months later on April 10, 2014, and extended the temporary protective order against

Allison until that time.




1
 Specifically, the court granted relief under 9(b)(1) (“Enjoin a respondent from threatening to commit or
committing acts of domestic or family violence against a petitioner and each designated family or
household member.”), 9(b)(2) (“Prohibit a respondent from harassing, annoying, telephoning, contacting,
or directly or indirectly communicating with a petitioner.”), and 9(b)(4) (“Order a respondent to stay
away from the residence, school, or place of employment of a petitioner or a specified place frequented
by a petitioner and each designated family or household member.”).
                                                   5
       It was certainly within the trial court’s discretion to continue the matter based on

Pepkowski’s apparent anxiety attack at the hearing. A six-month delay, though, defeats

the Act’s purpose of protecting victims in a fair, prompt, and effective manner. It also

runs contrary to Section 34-26-5-10(a), which requires a hearing within thirty days after a

request for a hearing is filed “unless continued by the court for good cause shown.” The

trial court made no record explaining why a delay of six months was necessary.

       The need for a particular length of delay must be balanced against Allison’s due

process rights. Indeed, the temporary protective order has been in effect during the entire

pendency of this appeal. The court’s extension of that order resulted in Allison being

subject to its terms for over seven months (the initial 45-day period before the hearing

plus the six-month continuance), all before he has even had an opportunity to be heard at

a hearing. In such circumstances, and as provided by statute, good cause was necessary

for the delay. We are inclined to determine that the trial court abused its discretion by

continuing the hearing for six months without explanation and to remand for a prompt

hearing.

       However, a party’s failure to object to an error waives the issue for review.

Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 974 (Ind. 2005). “The

overriding purpose of the requirement for a specific and timely objection is to alert the

trial court so that it may avoid error or promptly minimize harm from an error that might

otherwise require reversal, result in a miscarriage of justice, or waste time and resources.”

Camm v. State, 908 N.E.2d 215, 223 (Ind. 2009). There is no indication in the record that

Allison brought the issue before the trial court. We cannot grant any type of relief under

                                             6
such circumstances. See Schiller v. Knigge, 575 N.E.2d 704, 707 (Ind. Ct. App. 1991)

(“[L]itigants will not be permitted to invite error by their action, inaction or silence and

then expect to be successful in an attempt to gain relief from the error on appeal.”).

       Instead of objecting, Allison filed a notice of appeal. Allison argues that the trial

court’s October 10, 2013 order is appealable as a matter of right because it is an

interlocutory order granting or refusing to dissolve a preliminary injunction. See Ind.

Appellate Rule 14(A)(5) (an appeal from an interlocutory order “[g]ranting or refusing to

grant, dissolving, or refusing to dissolve a preliminary injunction” may be taken as a

matter of right). However, a preliminary injunction may not be granted without notice

and an opportunity to be heard at a hearing. See Ind. Trial Rule 65(A)(1). Allison

appeared at the October 10, 2013 hearing, but the hearing ended before he had an

opportunity to be heard. Thus, the court’s extension of the temporary protective order

granted a temporary restraining order, not a preliminary injunction.             Temporary

restraining orders are not appealable as of right. Witt v. Jay Petroleum, Inc., 964 N.E.2d

198, 203 (Ind. 2012). To pursue this appeal, Allison was required to seek the trial court’s

certification of the order for interlocutory appeal, and upon the court’s certification, to

ask us to accept jurisdiction over the appeal. See Ind. Appellate Rule 14(B) (providing

process for pursuing discretionary interlocutory appeals). Because he did not, we must

dismiss his appeal for lack of jurisdiction.

                                      CONCLUSION

       We therefore dismiss Allison’s appeal.

RILEY, J., and MAY, J., concur.

                                               7
