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Board failure to challenge timeliness of licensee appeal lets case survive motion to dismiss

An Indiana appellate court, in a November 13 ruling, declined to dismiss a late appeal brought against the state's Real Estate Appraiser Board, holding that an earlier state supreme court decision made such errors waivable, and that the board had failed to challenge the petition on timeliness grounds in an earlier decision.

(Farmer vs. Indiana Real Estate Appraiser Licensure and Certification Board).

When real estate appraiser Terry Farmer applied for the renewal of his license in 2016, the board denied his request, based on a longstanding disciplinary case that began in Kentucky. After Farmer requested a hearing, he was informed by the board that it was going to serve as the administrative law judge in his case.

Unhappy with that decision, Farmer filed a request for a different administrative judge, but was denied by the board. Farmer filed two additional requests for a new judge in June and November of 2017, but the board did not respond.

In April 2018, Farmer appealed to the state’s judicial system, filing a petition in a state circuit court which faulted the board for not responding to his latter requests to appoint a new administrative judge. However, the court dismissed the claim for failure to exhaust administrative remedies, on the grounds that Farmer had not received a final decision on his request for a new administrative judge. He appealed.

Oddly, in its argument in response to Farmer’s appeal, the board reversed its earlier position on whether Farmer had received a final order on his request for a new judge, now conceding that its original decision denying Farmer’s request had, in fact, been such a final decision. However, it continued to argue that Farmer’s appeal was invalid, now on the grounds that the petition had not been filed in a timely manner.

The appellate court agreed that Farmer’s petition for judicial review was untimely—he had filed it after the permissible 30 days following the decision—but held that the error was not fatal to the lower court’s jurisdiction, and that Farmer was entitled to have his late petition heard by a court. In making this decision, the court cited a 2006 Indiana Supreme Court decision, K.S. v. State, which held that certain errors which formerly would have cause a court to lose jurisdiction to hear a case entirely would now be considered procedural errors only, and thus could be waived by failure to pursue them in an earlier decision.

“In light of K.S.,” Judge Patricia Riley wrote, “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 . . . 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.” Thus, because the board failed to raise the issue in the lower court proceedings, it had waived the claim.

The board also claimed that Farmer’s appeal was void because he had failed to verify his petition for judicial review, as required by Indiana’s Administrative Orders and Procedures Act. However, similar to the board’s argument about Farmer’s timeliness, the court noted that the failure of party to get a petition verified was not a fatal flaw.

Having rejected the board’s arguments, the Court of Appeals concluded that the trial court had wrongly dismissed Farmer’s petition, and returned the case for further proceedings.