MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                           Feb 28 2019, 10:39 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
Terry M. Farmer                                          Curtis T. Hill, Jr.
Hyden, Kentucky                                          Attorney General of Indiana
                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Terry M. Farmer,                                         February 28, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PL-2540
        v.                                               Appeal from the Marion Circuit
                                                         Court
Indiana Real Estate Appraiser                            The Honorable Sheryl Lynch,
Licensure and Certification                              Judge
Board,                                                   Trial Court Cause No.
Appellee-Respondent.                                     49C01-1803-PL-12024




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-2540 | February 28, 2019             Page 1 of 7
                                STATEMENT OF THE CASE
[1]   Appellant-Petitioner, Terry Farmer (Farmer), appeals the trial court’s dismissal

      of his petition for judicial review.


[2]   We reverse and remand.


                                                    ISSUE
[3]   Farmer presents at least eleven issues on appeal, only one of which we find to

      be dispositive and which we restate as follows: Whether the trial court erred

      when it dismissed his petition for judicial review.


                      FACTS AND PROCEDURAL HISTORY
[4]   On May 8, 2016, Farmer applied to the Indiana Real Estate Appraiser

      Licensure and Certification Board (the Board) for the renewal of his Indiana

      appraiser’s license. On September 20, 2016, the Board sent Farmer a letter

      informing him that the Board had denied his license renewal request and

      describing his appeal options and procedures. On October 13, 2016, Farmer

      filed an appeal with the Board. On November 23, 2016, the Board denied that

      appeal. On December 8, 2016, Farmer filed a motion requesting that the Board

      reconsider its denial of his appeal.


[5]   On March 24, 2017, the Board filed its Hearing Notice setting a hearing for

      April 6, 2017, on Farmer’s petition for reconsideration. The Board also notified

      Farmer that it would preside as administrative law judge (ALJ) at the hearing.



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2540 | February 28, 2019   Page 2 of 7
      On March 29, 2017, Farmer filed a motion with the Board seeking a new ALJ.

      On May 11, 2017, the Board denied Farmer’s motion for a new ALJ. 1 On June

      19, 2017, and on October 19, 2017, Farmer filed renewed motions for a new

      ALJ, which were not responded to or ruled upon by the Board.


[6]   On March 27, 2018, Farmer filed a petition in the Marion County Circuit Court

      seeking judicial review based on his allegation that the Board had failed to

      respond to his June 19, 2017, and October 19, 2017, renewed motions for a new

      ALJ. Farmer requested that “a full hearing/trial be scheduled with a possible

      jury present.” (Appellant’s App. Vol. II, p. 20). In the alternative, Farmer

      requested that the trial court assign an independent ALJ to his case or order the

      Board to assign an independent ALJ to his case.


[7]   On April 25, 2018, the Board filed its Motion to Dismiss based on Indiana Trial

      Rule 12(B)(6), alleging that Farmer had failed to state a claim upon which relief

      could be granted because he lacked standing, having not received a final order

      from the Board on his motion for a new ALJ and having failed to exhaust his

      administrative remedies. The Board also alleged that Farmer’s petition was

      subject to dismissal because he had failed to file a verified petition as required

      by statute.




      1
          A copy of the Board’s May 11, 2017, order is not part of the record on appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2540 | February 28, 2019    Page 3 of 7
[8]    On September 25, 2018, the trial court held a hearing on the Board’s Motion to

       Dismiss. 2 On October 3, 2018, the trial court issued its Order dismissing

       Farmer’s petition for judicial review based on its finding that Farmer lacked

       standing because he had not yet received a final order on his motion for a new

       ALJ and had not exhausted his administrative remedies.


[9]    Farmer now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION
                                                  I. Standard of Review

[10]   Farmer appeals following the trial court’s dismissal of his judicial review

       petition pursuant to Indiana Trial Rule 12(B)(6) for failure to state a claim upon

       which relief could be granted. A Rule 12(B)(6) motion tests the legal sufficiency

       of a complaint and requires that we accept as true all facts as alleged in the

       complaint. Esserman v. Ind. Dep’t of Envtl. Mgmt., 84 N.E.3d 1185, 1188 (Ind.

       2017). We review a trial court’s ruling on a motion to dismiss for failure to

       state a claim de novo. Id.


                                                        II. Dismissal

[11]   On appeal, Farmer appears to take contradictory positions as to whether the

       Board’s May 11, 2017, order denying his motion for a new ALJ was a final

       order, and he develops no argument pertaining to the trial court’s conclusion




       2
           Farmer did not request a transcript of this hearing in his Notice of Appeal.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2540 | February 28, 2019   Page 4 of 7
       that he had not exhausted his administrative remedies. For its part, the Board

       reverses course and concedes on appeal that its May 11, 2017, order denying

       Farmer’s petition for a new ALJ was a final order that was subject to judicial

       review. The Board argues that Farmer’s petition was, nevertheless, properly

       dismissed by the trial court because it was not timely. In light of the Board’s

       concession on appeal, we will consider whether Farmer’s petition for judicial

       review was subject to dismissal because it was untimely filed.


[12]   Pursuant to the Administrative Orders and Procedures Act (AOPA), judicial

       review of an agency action is initiated by filing for review in the appropriate

       court. I.C. § 4-21.5-5-2. “[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.” I.C. § 4-21.5-5-5.

       Furthermore, a litigant who fails to file a timely petition for judicial review

       waives his right to appeal. I.C. § 4-21.5-5-4(b)(1). Thus, Farmer had thirty

       days after he was served with notice of the Board’s May 11, 2017, order to file

       his petition for judicial review. Id. Farmer did not file his petition for judicial

       review in the trial court until March 27, 2017, and so his petition was untimely.


[13]   However, in K.S. v. State, 849 N.E.2d 538, 541-42 (Ind. 2006), our supreme

       court held that certain procedural errors formerly characterized as jurisdictional

       do not deprive a trial court of its subject matter jurisdiction. K.S., a juvenile

       facing a probation revocation, challenged the juvenile court’s original

       delinquency adjudication. Id. at 541. K.S. alleged that the trial court had failed

       to approve the filing of the delinquency petition in writing, as required by

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2540 | February 28, 2019   Page 5 of 7
       statute, and that because of this error, the juvenile court never obtained subject

       matter jurisdiction over her case. Id. Our supreme court held that because the

       juvenile court had jurisdiction over the general class of actions to which K.S.’s

       case belonged, there was no question that the juvenile court had jurisdiction

       over her case. Id. at 542. The supreme court noted that “K.S.’s claim of

       procedural error is untimely. Despite the alleged error occurring in the original

       delinquency proceedings for battery, K.S. did not object during these

       proceedings.” Id.


[14]   In light of K.S., this court has concluded that the failure of a litigant to file a

       timely petition for judicial review is a procedural error, not a jurisdictional one.

       Hunter v. Ind. Dep’t of Transp., 67 N.E.3d 1085, 1089 (Ind. Ct. App. 2016), trans.

       denied. Because the issue of the timeliness of the filing of a petition for judicial

       review is a procedural one, it can be waived if not raised at the appropriate

       time. Id. (citing In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014)); K.S.,

       829 N.E.2d at 542. The Board did not object to the timeliness of Farmer’s

       petition for judicial review in the trial court proceedings, and so we conclude

       that it has waived that claim.


[15]   The Board also argues on appeal that Farmer’s petition for judicial review was

       subject to dismissal because it was unverified. AOPA requires that a petition

       for judicial review be verified. I.C. § 4-21.5-5-7. Farmer’s petition for judicial

       review was not verified. (Appellant’s App. Vol. II, pp. 14-22). However, the

       Board does not provide us with any post-K.S. authority holding that a petition

       for judicial review may be dismissed for lack of verification, and Farmer’s

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2540 | February 28, 2019   Page 6 of 7
       failure to verify his petition was not the basis for the trial court’s dismissal of his

       petition for judicial review. We decline to consider the issue. Because the

       Board has conceded that its May 11, 2017, order denying Farmer’s petition for

       a new ALJ was a final order subject to judicial review and it waived any claim

       that Farmer’s petition for review was untimely, we conclude that the trial court

       erred when it dismissed Farmer’s petition for judicial review.


                                             CONCLUSION
[16]   Based on the foregoing, we conclude that the trial court erred when it dismissed

       Farmer’s petition seeking judicial review of the Board’s denial of his petition for

       a new ALJ.


[17]   Reversed and remanded for further proceedings consistent with this opinion.


[18]   Robb, J. concurs


[19]   Kirsch, J. dissents without separate opinion




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2540 | February 28, 2019   Page 7 of 7
