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,
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.
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.
and Procedural History
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.
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.
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.
1 - Hunter's petition for judicial review was untimely
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