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
