Park v. Medical Licensing Bd. of Indiana

• Decision Date: 24 October 1995
• Docket Number: No. 45A04-9409-CV-370,45A04-9409-CV-370
• Citation: 656 N.E.2d 1176
• Parties: Tae H. PARK, Appellant-Petitioner, v. The MEDICAL LICENSING BOARD OF INDIANA, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 1176

656 N.E.2d 1176

Tae H. PARK, Appellant-Petitioner, v. The MEDICAL LICENSING BOARD OF INDIANA, Appellee-Respondent.

No. 45A04-9409-CV-370.

Court of Appeals of Indiana.

Oct. 24, 1995.

Transfer Denied April 3, 1996.

William L. Touchette, Merrillville, Karl L. Mulvaney, Bingham Summers Welsh & Spilman, Indianapolis, for Appellant.

Pamela Carter, Attorney General, Connie J. Dinn, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

RILEY, Judge.

Appellant-Petitioner Tae H. Park, M.D., appeals the trial court's dismissal of his petition for judicial review of an order of the Medical Licensing Board of Indiana (the "Board").

We affirm.

ISSUES

Park presents one consolidated and restated issue for our review: Did the trial court have jurisdiction over Park's petition for judicial review?

FACTS

The State of Indiana by the Office of the Attorney General, Division of Consumer Protection, filed a complaint against Park's medical license on April 16, 1991, and two members of the Board acting as administrative law judges (ALJs) held an evidentiary administrative hearing in May of 1992. After Park filed his proposed findings of facts and conclusions of law in November, 1992, the ALJs issued recommended findings of fact, conclusions of law and order on January 21, 1993.

Park objected to the ALJs' recommended findings; and, on February 25, 1993, the Board issued an emergency order, suspending Park's medical license for 90 days after finding that Park constituted a clear and immediate danger to the public health, safety and welfare if allowed to continue to practice medicine. This order was based upon the ALJs' findings and Park's motion for a continuance. After further motions, including Park's Motion to Withdraw a Motion for Continuance in Order to Submit New Evidence, the Board adopted the ALJs' recommended findings by unanimous vote on March 25, 1993.

On April 1, 1993, Park filed a petition for judicial review and a motion for stay of effectiveness of the Board's suspension order. The stay was granted by the trial court ex parte; neither the Board or its counsel received notice of the proceedings.

The Board issued its final order revoking Park's license on April 7, 1993. A week later, the Board filed a motion for change of judge in the trial court which Judge Danikolas granted. After two panels were proposed and the parties struck names of judges, Judge Conroy qualified as special judge and the parties were notified of his qualifications on September 10, 1993.

Meanwhile, on August 25, 1993, Park filed a petition to show cause against Deputy Attorney General Connie Dinn. A special hearing in Judge Danikolas's chambers on September 2, 1993, resulted in the dissolution of the order to show cause.

On September 28, 1993, the Board filed a motion to dismiss pursuant to Ind.Trial Rule 12(B) for lack of subject matter jurisdiction. This motion was based on Park's failure to file the record of the administrative proceedings with the trial court.

On October 1, 1993, Park motioned for a change of judge; however, on December 13, 1993, both parties agreed to venue the case to Special Judge John L. Richert. On January 11, 1994, Park filed a Petition Requesting Extension of Time to File Record of Administrative Proceedings with the Court for Good Cause. After a hearing, the trial court denied Park's petition and dismissed the action on May 18, 1994. It is from this decision that Park appeals.

DISCUSSION

Park contends that the trial court erred when it denied his petition for an extension of time to file the record of the administrative hearing because he showed the good cause required by statute and because his petition was filed in a timely manner.

Proceedings before the Board and judicial review thereof are governed by the Administrative Order and Procedures Act ("AOPA"), IND.CODE 4-21.5-1-1 et seq. (1993), which provides, in relevant part, that the petitioner "shall transmit to the court the ... agency record for judicial review" within thirty (30) days after the petition is filed unless further time is allowed by the court or other law. I.C. 4-21.5-5-13(a). "Failure to file the record within the time permitted by this subsection, including any extension period ordered by the court, is cause for dismissal of the petition for review by the court, on its own motion, or on petition of any party of record to the proceeding." I.C. 4-21.5-5-13(b).

The time provisions of I.C. 4-21.5-5-13 are mandatory and a condition precedent to a court acquiring jurisdiction where an appeal or review is sought from an administrative order or determination. Crowder v. Rockville Training Center (1994), Ind.App., 631 N.E.2d 947, 948, trans. denied; Indianapolis Yellow Cab v. Indiana Civil Rights Comm'n (1991), Ind.App., 570 N.E.2d 940, 942, trans. denied; State v. Van Ulzen (1983), Ind.App., 456 N.E.2d 459, 464 (discussing I.C. 4-22-1-14, predecessor to I.C. 4-21.5-5-13). Once the period authorized by I.C. 4-21.5-5-13 has expired, the trial court is without jurisdiction to hear the appeal. Crowder, 631 N.E.2d at 948 (because petitioner failed to file record by deadline set by trial court pursuant to petitioner's first request for extension, trial court did not obtain jurisdiction over matter and thus had no authority to rule on subsequent request for extension); Yellow Cab, 570 N.E.2d at 942 (trial court lacked jurisdiction to review agency determination where record was filed one day after statutory period expired); Drake v. Indiana Natural Resources Comm'n (1983), Ind.App., 453 N.E.2d 288, 292 (where petitioner failed to file record within time allowed pursuant to request for extension, trial court lacked jurisdiction).

In the present case, the period authorized by I.C. 4-21.5-5-13 expired on May 3, 1993. Park did not file the record by that date; however, he did request an extension on January 11, 1994. Park argues that I.C. 4-22-1-14, predecessor of the current statute

specifically indicated that failure to seek an extension shall be cause for dismissal. The AOPA (now in use for administrative appeals) does two things. It deletes the provision about needing to seek the extension with[in] [sic] the time period. Second, it removes the mandatory "shall" and replaces it with the precatory "is". Thus, even though Yellow Cab appears to equate these two statutes as having the same effect, [Park] respectfully submits that the judicial review court was granted discretion under the AOPA to grant an extension for good cause even after the time period has arguable run.

Appellant's Brief at 40. However, in Crowder, where the petitioner failed to file the record by the deadline set by the trial court pursuant to the petitioner's first request for extension, we found that the trial court lost jurisdiction after the first extension period expired, and thus had no authority to rule on a subsequent request an for extension after the first deadline. Crowder, 631 N.E.2d at 948. Likewise, on January 11, 1994, when Park filed his tardy petition, the trial court had no jurisdiction over the action and...