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Hunter v. State, Department of Transportation

Court of Appeals of Indiana

December 29, 2016

Andrew Hunter, Appellant-Petitioner,
v.
State of Indiana, Department of Transportation, Appellee-Respondent

         Appeal from the Marion Superior Court Trial Court Cause No. 49D11-1509-PL-30861 The Honorable John F. Hanley, Judge

          Attorneys for Appellant Samuel M. Adams Paul A. Logan John H. Haskin & Associates Indianapolis, Indiana

          Attorneys for Appellee Gregory F. Zoeller Attorney General of Indiana Kyle Hunter Deputy Attorney General Indianapolis, Indiana

          Crone, Judge.

         Case Summary

         [¶1] Andrew Hunter was terminated from his employment with the Indiana Department of Transportation ("INDOT"). His administrative appeals were 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.

         [¶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:

(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 ...

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