                                                                         FILED
                                                                    Dec 29 2016, 8:38 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Samuel M. Adams                                           Gregory F. Zoeller
      Paul A. Logan                                             Attorney General of Indiana
      John H. Haskin & Associates
      Indianapolis, Indiana                                     Kyle Hunter
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Andrew Hunter,                                            December 29, 2016
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                49A02-1604-PL-978
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana, Department of                           The Honorable John F. Hanley,
      Transportation,                                           Judge
      Appellee-Respondent                                       Trial Court Cause No.
                                                                49D11-1509-PL-30861



      Crone, Judge.


                                              Case Summary
[1]   Andrew Hunter was terminated from his employment with the Indiana

      Department of Transportation (“INDOT”). His administrative appeals were



      Court of Appeals of Indiana | Opinion 49A02-1604-PL-978 | December 29, 2016             Page 1 of 12
      unsuccessful, and he filed a petition for judicial review. INDOT filed a motion

      to dismiss the petition as untimely, which the trial court granted.


[2]   On appeal, Hunter contends that the trial court erred in granting INDOT’s

      motion to dismiss, claiming that the petition was timely filed. In the

      alternative, he argues that the untimely filing of a petition is a procedural error,

      not a jurisdictional error; that INDOT failed to preserve the timeliness issue by

      not raising it as an affirmative defense; and that, in any event, he should be

      allowed to demonstrate good cause to excuse the untimely filing. We conclude

      that the petition was untimely filed; that the error is procedural, not

      jurisdictional; that the trial court could consider the timeliness issue even if

      INDOT failed to preserve it; and that because Hunter’s petition was untimely

      filed, he has waived his right to judicial review and is not entitled to

      demonstrate good cause to excuse the untimely filing. Therefore, we affirm.


                                  Facts and Procedural History
[3]   The relevant facts are undisputed. INDOT terminated Hunter’s employment in

      November 2013. Hunter unsuccessfully challenged his termination through the

      administrative appeals process under the Administrative Orders and Procedures

      Act, Indiana Code Article 4-21.5 (“AOPA”). Ultimately, on August 13, 2015,

      the State Employees’ Appeal Commission (“SEAC”) issued and served on the

      parties by mail a final order affirming the administrative law judge’s ruling in

      favor of INDOT.




      Court of Appeals of Indiana | Opinion 49A02-1604-PL-978 | December 29, 2016   Page 2 of 12
[4]   On September 16, 2015, Hunter filed a petition for judicial review of SEAC’s

      order. INDOT filed a response to Hunter’s petition and subsequently filed a

      motion to dismiss for failure to state a claim under Indiana Trial Rule 12(B)(6),

      in which it argued for the first time that Hunter’s petition was untimely filed.

      After a hearing, the trial court granted INDOT’s motion to dismiss. Hunter

      filed a motion to correct error, which the trial court denied. This appeal

      ensued.


                                      Discussion and Decision
[5]   Hunter argues that the trial court erred in granting INDOT’s motion to dismiss.

      “The standard of review on appeal of a trial court’s grant of a motion to dismiss

      for the failure to state a claim is de novo and requires no deference to the trial

      court's decision.” Bellows v. Bd. of Comm’rs, 926 N.E.2d 96, 110 (Ind. Ct. App.

      2010). “The grant or denial of a motion to dismiss turns only on the legal

      sufficiency of the claim and does not require determinations of fact.” Id.


      Section 1 – Hunter’s petition for judicial review was untimely
                                   filed.
[6]   Hunter first argues that his petition was timely filed. Indiana Code Section 4-

      21.5-5-5 states, “Except as otherwise provided, 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.” Indiana

      Code Section 4-21.5-3-2 governs time computation under AOPA and reads in

      relevant part as follows:


      Court of Appeals of Indiana | Opinion 49A02-1604-PL-978 | December 29, 2016   Page 3 of 12
              (a) In computing any period of time under this article, the day of
              the act, event, or default from which the designated period of
              time begins to run is not included. The last day of the computed
              period is to be included unless it is:
              (1) a Saturday;
              (2) a Sunday;
              (3) a legal holiday under a state statute; or
              (4) a day that the office in which the act is to be done is closed
              during regular business hours.
              (b) A period runs until the end of the next day after a day
              described in subsection (a)(1) through (a)(4).…
              (c) A period of time under this article that commences when a
              person is served with a paper, including the period in which a
              person may petition for judicial review, commences with respect
              to a particular person on the earlier of the date that:
              (1) the person is personally served with the notice; or
              (2) a notice for the person is deposited in the United States mail.
              ….
              (e) If a notice is served through the United States mail, three (3)
              days must be added to a period that commences upon service of
              that notice.


[7]   Whether Hunter’s petition was timely filed is a matter of statutory

      interpretation, which we review de novo. K.T.P. ex rel. A.S.P. v. Atchison, 848

      N.E.2d 280, 283 (Ind. Ct. App. 2006). “A statute which is clear and

      unambiguous must be read to mean what it plainly expresses, and its plain and

      obvious meaning will not be enlarged or restricted.” Id. We find Indiana Code

      Section 4-21.5-3-2 to be clear and unambiguous. Because notice of SEAC’s

      final order was served through the United States mail on August 13, three days

      must be added to the thirty-day period for filing a petition for judicial review

      that commenced upon service of that notice, which results in a period of thirty-


      Court of Appeals of Indiana | Opinion 49A02-1604-PL-978 | December 29, 2016   Page 4 of 12
      three days. Ind. Code § 4-21.5-3-2(e). Pursuant to the clear statutory language,

      that period began to run on August 14, and the last day of that period was

      Tuesday, September 15. Hunter filed his petition on September 16, and

      therefore it was untimely.


      Section 2 – The untimely filing of a petition for judicial review
              is a procedural error, not a jurisdictional error.
[8]   We must now consider whether the untimely filing of a petition for judicial

      review under AOPA is a procedural error, as Hunter claims, which could be

      waived if not raised at the appropriate time, or a jurisdictional error, as INDOT

      claims, which would deprive the trial court of authority to rule on Hunter’s

      petition. Based on a decade of precedent that has clarified the differences

      between the two, we find the error to be procedural.


[9]   In K.S. v. State, 849 N.E.2d 538 (Ind. 2006), our supreme court explained that

      “Indiana trial courts possess two kinds of ‘jurisdiction.’ Subject matter

      jurisdiction is the power to hear and determine cases of the general class to

      which any particular proceeding belongs. Personal jurisdiction requires that

      appropriate process be effected over the parties.” Id. at 540. “Attorneys and

      judges alike frequently characterize a claim of procedural error as one of

      jurisdictional dimension.” Id. at 541. “Real jurisdictional problems would be,

      say, a juvenile delinquency adjudication entered in a small claims court, or a

      judgment rendered without any service of process. Thus, characterizing other

      sorts of procedural defects as ‘jurisdictional’ misapprehends the concepts.” Id.

      at 542.

      Court of Appeals of Indiana | Opinion 49A02-1604-PL-978 | December 29, 2016   Page 5 of 12
[10]   In this case, “[t]here is no dispute that the trial court had jurisdiction over the

       general class of actions at issue here—petitions for judicial review of agency

       actions.” St. Joseph Hosp. v. Cain, 937 N.E.2d 903, 906 (Ind. Ct. App. 2010),

       trans. vacated. Also, there is no dispute that appropriate process was effected

       over the parties. Moreover, the pertinent statute, Indiana Code Section 4-21.5-

       5-4, is written in terms of waiver and not subject matter jurisdiction. 1 See Ind.

       Code § 4-21.5-5-4(b) (providing that a person who fails to timely petition for

       judicial review “has waived the person’s right to judicial review under this

       chapter.”). In Cain, we held that the petitioner’s failure to file a verified petition

       for judicial review, as required by AOPA, 2 was “accurately described as a

       ‘procedural error’” and not an error that deprived the trial court of subject




       1
        In Packard v. Shoopman, 852 N.E.2d 927 (Ind. 2006), our supreme court held that the untimely filing of a
       petition for review in the Indiana Tax Court was a procedural error, even though the relevant statute
       provided, “‘If a taxpayer fails to comply with any statutory requirement for the initiation of an original tax
       appeal, the tax court does not have jurisdiction to hear the appeal.’” Id. at 929 (quoting Ind. Code § 33-26-6-
       2 (2004)). The Packard court explained,
              The statutory provision for timely filing in the Tax Court found in Indiana Code section 33-26-
              6-2 predates our decision in K.S. and was enacted at a time when Indiana courts commonly
              used the phrase “jurisdiction over the particular case” to refer to various procedural
              prerequisites to the exercise of subject matter jurisdiction. We conclude that when section 33-
              26-6-2 was passed, the General Assembly used “jurisdiction” to refer to the now abolished
              “jurisdiction over the particular case,” i.e. procedural prerequisites that can be waived or
              procedurally defaulted if not timely raised.
       Id. at 930. To the extent INDOT suggests that our supreme court has unconstitutionally circumvented the
       legislature’s limitations on trial court jurisdiction via K.S., Packard, and subsequent cases, see Appellee’s Br. at
       19-20, we note that the legislature has not amended any statutes in response to those cases or otherwise
       indicated any disagreement with our supreme court on this issue.
       2
         See Ind. Code § 4-21.5-5-7(b) (stating that “[a] petition for review must be verified”). The petition in Cain
       was unverified but timely filed, and we held that a verification could be added by amendment, which would
       relate back to the date of the filing of the original petition. 937 N.E.2d at 909. The appellee in Cain did not
       argue that a party waives its right to judicial review under Indiana Code Section 4-21.5-5-4(b) by filing a
       timely but unverified petition.

       Court of Appeals of Indiana | Opinion 49A02-1604-PL-978 | December 29, 2016                            Page 6 of 12
       matter jurisdiction. 937 N.E.2d at 907. Based on the foregoing precedent, we

       conclude that a petitioner’s failure to timely file a petition for judicial review is

       also a procedural error and not a jurisdictional error. Cf. In re Adoption of O.R.,

       16 N.E.3d 965, 971 (Ind. 2014) (“The untimely filing of a Notice of Appeal is

       not a jurisdictional defect depriving the appellate courts of the ability to

       entertain an appeal.”); Packard v. Shoopman, 852 N.E.2d 927, 931-32 (Ind. 2006)

       (“Because the timeliness of filing does not affect the subject matter jurisdiction

       of the Tax Court, any objection to the timeliness of filing is a procedural rather

       than jurisdictional error that can be waived if not raised at the appropriate

       time.”) (citing K.S., 849 N.E.2d at 542). 3


           Section 3 – Assuming that INDOT failed to preserve the
       timeliness issue by not raising it as an affirmative defense, the
         trial court nevertheless could have considered the issue and
            found that Hunter waived his right to judicial review.
[11]   Hunter asserts that untimeliness is an affirmative defense that INDOT was

       required to plead in its response to his petition pursuant to Indiana Trial Rule

       8(C) and therefore INDOT failed to preserve the issue. See Ind. Trial Rule 8(C)

       (“A responsive pleading shall set forth affirmatively and carry the burden of




       3
         The cases that INDOT relies on in asserting that the timeliness of a petition for judicial review is
       jurisdictional predate our supreme court’s opinions in K.S. and Packard by a decade or more, and therefore
       we do not find them persuasive. See Appellee’s Br. at 16 (citing Bowman v. Ind. State Bd. of Nursing, 663
       N.E.2d 1217 (Ind. Ct. App. 1996), and State v. Van Ulzen, 456 N.E.2d 459 (Ind. Ct. App. 1983), trans. denied).
       Nor are we persuaded by INDOT’s attempt to distinguish K.S. and Packard based on the “specialized
       jurisdiction” of the juvenile and tax courts in those cases. Id. at 17. The Packard court “acknowledge[d] that
       statutory ‘jurisdictional’ requirements in other statutes may require a different result” than the one reached in
       that case, 852 N.E.2d at 931, but Indiana Code Section 4-21.5-5-4(b) does not require a different result here.

       Court of Appeals of Indiana | Opinion 49A02-1604-PL-978 | December 29, 2016                         Page 7 of 12
       proving: … statute of limitations … and any other matter constituting an

       avoidance, matter of abatement, or affirmative defense. A party required to

       affirmatively plead any matters, including matters formerly required to be

       pleaded affirmatively by reply, shall have the burden of proving such matters.”);

       Packard, 852 N.E.2d at 932 (“We think that a challenge to the timeliness of the

       filing of the petition for review in the Tax Court is analogous to the statute of

       limitations and is in the nature of a ‘matter constituting an avoidance, matter of

       abatement or affirmative defense.’”). Assuming for argument’s sake that

       Hunter is correct, 4 the trial court nevertheless could have considered the issue

       and found that he waived his right to judicial review pursuant to Indiana Code

       Section 4-21.5-5-4(b). See Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002)

       (“[A]lthough a party who has failed to plead or prove a Rule 8(C) affirmative

       defense has no right to prevail on that basis, the party may nevertheless suggest

       to the court that procedural default of an issue is an appropriate basis to affirm

       the judgment below.”).


       Section 4 – Hunter is not entitled to demonstrate good cause to
                  excuse the untimely filing of his petition.
[12]   Finally, Hunter argues that because the untimely filing of a petition for judicial

       review under AOPA is not a jurisdictional error, the trial court should give him




       4
         INDOT notes that neither AOPA nor the Trial Rules require that a response be filed to a petition for
       judicial review; that it “expressly reserved” its rights and defenses in its response to Hunter’s petition pending
       the filing of the agency record; and that it filed its motion to dismiss two days after the record was filed with
       the trial court. Appellee’s Br. at 25 (quoting Appellant’s App. at 29).

       Court of Appeals of Indiana | Opinion 49A02-1604-PL-978 | December 29, 2016                          Page 8 of 12
an “opportunity to demonstrate good cause to excuse the untimely filing.”

Appellant’s Br. at 21. Hunter’s argument is premised on our supreme court’s

opinion in O.R., 16 N.E.3d 965. 5 In that case, a child’s biological father

contested a petition for adoption, which was granted, and this Court dismissed

the father’s appeal based on lack of subject matter jurisdiction because the

notice of appeal had been untimely filed. Our supreme court granted transfer

and revisited the long line of precedent holding that “a party's failure to file

timely the necessary papers deprived the appellate courts of jurisdiction to

entertain the appeal” in light of its relatively recent clarification of jurisdictional

concepts in K.S. and subsequent cases. Id. at 969. The court noted that Indiana

Appellate Rule 9(A), which gives a party thirty days to file a notice of appeal

after the entry of a final judgment, “does not mention jurisdiction at all.” Id. at

970; see Ind. Appellate Rule 9(A)(5) (“Unless the Notice of Appeal is timely

filed, the right to appeal shall be forfeited except as provided by [Postconviction

Rule] 2.”). The court further noted that “[f]orfeiture and jurisdiction are not the

same” and went on to say,

        In essence a party loses his or her right to appeal for failing to file
        timely a Notice of Appeal. The Rule is clear that under such
        circumstance “the right to appeal shall be forfeited.” App. R.
        9(A)(5). But a party’s forfeiture—or loss of this right—does not
        also mean the appellate courts somehow lose their authority to
        hear and determine the general class of cases to which a party’s
        case belongs or over the party attempting to assert its right of



5
 Hunter did not cite O.R. in his response to INDOT’s motion to dismiss or in his motion to correct error, but
INDOT does not assert that he is precluded from doing so on appeal.

Court of Appeals of Indiana | Opinion 49A02-1604-PL-978 | December 29, 2016                      Page 9 of 12
               appeal. Stated somewhat differently, although a party forfeits its
               right to appeal based on an untimely filing of the Notice of
               Appeal, this untimely filing is not a jurisdictional defect depriving
               the appellate courts of authority to entertain the appeal. Rather,
               the right to appeal having been forfeited, the question is whether
               there are extraordinarily compelling reasons why this forfeited
               right should be restored.


       O.R., 16 N.E.3d at 970, 971.


[13]   The court gave three reasons for finding that the appellant’s forfeited right to

       appeal should be restored. The court first noted that the rules of appellate

       procedure “exist to facilitate the orderly presentation and disposition of

       appeals” and “are merely means for achieving the ultimate end of orderly and

       speedy justice.” Id. at 971, 972. That policy had been incorporated into

       Appellate Rule 1, which permits the appellate court to deviate from the rules

       upon a party’s or the court’s own motion; “[t]hus, despite the ‘shall be forfeited’

       language of Rule 9(A), the Rules themselves provide a mechanism allowing this

       Court to resurrect an otherwise forfeited appeal.” Id. at 972. Next, the court

       noted that the appellant sought appointment of appellate counsel four days

       before the notice of appeal was due, counsel was appointed long after the

       deadline, and the motions panel of this Court accepted counsel’s amended

       notice of appeal. Finally, “and perhaps most important,” the court

       acknowledged the fundamental liberty interests at stake in the appellant’s

       attempt to maintain his status as the legal father of his child. Id. The court

       remarked, “It is this unique confluence of a fundamental liberty interest along

       with ‘one of the most valued relationships in our culture’ that has often

       Court of Appeals of Indiana | Opinion 49A02-1604-PL-978 | December 29, 2016   Page 10 of 12
       influenced this Court as well as our Court of Appeals to decide cases on their

       merits rather than dismissing them on procedural grounds,” and concluded that

       the appellant’s “otherwise forfeited appeal deserves a determination on the

       merits.” Id.


[14]   In this case, Indiana Code Section 4-21.5-5-4(b) provides that a person who fails

       to timely file a petition for judicial review “has waived the person’s right to

       judicial review under this chapter.” Waiver has been defined as “[t]he

       voluntary relinquishment or abandonment — express or implied — of a legal

       right or advantage; FORFEITURE”). BLACK’S LAW DICTIONARY (10th ed.

       2014). Like Appellate Rule 9(A), Indiana Code Section 4-21.5-5-4(b) does not

       mention jurisdiction at all. But we find it significant that AOPA “establishes

       the exclusive means for judicial review of an agency action,” Ind. Code § 4-

       21.5-5-1, and it does not include a provision similar to Appellate Rule 1 that

       permits deviation from AOPA’s procedural rules. In fact, Indiana Code

       Section 4-21.5-2-2 provides, “Except to the extent precluded by a law, a person

       may waive any right conferred upon that person by this article. This section

       does not permit the waiver of any procedural duty imposed by this article.”

       Thus, there is no mechanism allowing the trial court to resurrect a waived right

       to judicial review. 6 Therefore, we do not find O.R. persuasive. Consequently,

       we hold that Hunter is not entitled to demonstrate that he has good cause to



       6
         INDOT points out that Indiana Code Section 4-21.5-5-13(b) allows a petitioner to request an extension of
       time in which to file the agency record with the trial court and that Indiana Code Section 4-21.5-5-4 does not
       contain a similar provision for a petition for judicial review.

       Court of Appeals of Indiana | Opinion 49A02-1604-PL-978 | December 29, 2016                      Page 11 of 12
       excuse the untimely filing of his petition. 7 We affirm the trial court’s grant of

       INDOT’s motion to dismiss Hunter’s untimely petition for judicial review.


[15]   Affirmed.


       Riley, J., and Altice, J., concur.




       7
         Nevertheless, we note that, unlike the appellant in O.R., Hunter has been represented by the same attorney
       throughout the administrative and judicial proceedings. We further note that Hunter has not asserted that
       fundamental liberty interests are at stake here.

       Court of Appeals of Indiana | Opinion 49A02-1604-PL-978 | December 29, 2016                     Page 12 of 12
