author: Baker, Judge.

text:
    James E. SHAW, Administrator of the Estate and as Father of Jaymes G. Shaw, deceased, Appellant, v. Chandra SUNDARAM, M.D., and Kelli Metelues, Appellees
    Court of Appeals Case No. 49A02-1710-CT-2470
    Court of Appeals of Indiana.
    FILED August 9, 2018
    Attorneys for Appellant: Nathaniel Lee, Laura R. Crowley, Lee Cossell & Crowley, LLP, Indianapolis, Indiana
    Attorneys for Appellee Dr. Sundaram: Michael E. O'Neill, Kelly K. McFadden, O'Neill McFadden & Willett LLP, Schererville, Indiana
   Baker, Judge.

[1] James Shaw (Shaw) brings this appeal as father of Jaymes Shaw (Jay) and as administrator of Jay's estate. Jay died following an illness and a surgery, and Shaw filed a medical malpractice action stemming from Jay's death. Following a lengthy discovery period that included the trial court entering two orders to compel and two sanctions awards against Shaw, the parties went to trial. The jury found in favor of Dr. Chandra Sundaram, who performed the surgery. Shaw now appeals, arguing that (1) the trial court made erroneous rulings regarding one of his expert witnesses; and (2) the trial court erroneously granted a motion in limine preventing Shaw from introducing an informed consent claim into the trial. Finding no error, we affirm.

Facts

Jay's Illness and Surgery

[2] On October 20, 2009, nineteen-year-old Jay arrived at the emergency room with his mother, Kelli Metelues (Kelli). Jay had previously had a kidney transplant and was scheduled for a kidney stent placement to help relieve a blockage in the transplanted kidney. After evaluating Jay's symptoms, hospital personnel admitted him to the hospital with dual diagnoses of pneumonia and acute renal failure. Doctors believed that one of the contributory factors to Jay's acute renal failure was the blockage in his transplanted kidney.

[3] A nephrologist evaluated Jay's condition and concluded that the placement of a stent was the best course of action. That doctor asked Dr. Sundaram, a urologist, to place the stent. The plan was discussed with Jay and Kelli. A surgical consent form was signed for a cystoscopy and transplant stent placement to be performed by Dr. Sundaram and his resident. The signature line bears Jay's name and is witnessed by Kelli, whose name also appears on the lines for "Parent, Guardian, or Other Signature" and for "Name of Adult Witness." Appellant's App. Vol. VI p. 150. The document is also signed in the box labeled "Treating Practitioner," which describes the information provided during the informed consent discussion with the patient and his family, including the risks, benefits, and alternatives to the procedure. Kelli later attested in a deposition that she signed the form on Jay's behalf at his request:

Q: At the time, I believe Jay was 19?
A: Yes.
Q: Why did you sign this instead of him?
A: Because I was his caregiver, and he didn't understand what was going on.
Q: Okay. Were you-did you have documentation that you were his legal representative?
A: I believe so. I don't remember.
Q: Okay. So you had a power of attorney or something of that nature?
A: I actually don't remember. I know he gave consent to sign for him.

Appellant's App. Vol. II p. 141.

[4] On October 21, 2009, Dr. Sundaram performed a cystoscopy and stent placement on Jay. During the procedure, Jay went into cardiac arrest and died.

The Litigation

[5] On October 20, 2011, Shaw filed a medical malpractice action against Dr. Sundaram and others with the Indiana Department of Insurance (IDOI). Shaw's proposed complaint included the following allegations:

6. [Jay] presented to the Emergency Room at I.U. Health University Hospital on October 20, 2009 with flu-like symptoms which included fever, chills, cough, weakness, fatigue and diarrhea.
7. [Jay] was scheduled for elective surgery for a ureteral stent placement on October 21, 2009.
8. Defendants determined that the non-emergent surgery should proceed despite his presentation instead of postponing the surgery.
9. [Jay's] condition deteriorated in the Operative Room leading to cardiac arrest and his expiration.
10. Defendants failed to act within the reasonable standard of care and as a direct and proximate result of their actions, Plaintiff has been injured.

Id. at 189-90.

[6] Shaw eventually presented his claims to a Medical Review Panel (MRP), which found in favor of Dr. Sundaram and the other defendants. On November 21, 2013, Shaw filed a negligence action against Dr. Sundaram on behalf of Jay's estate. In relevant part, the complaint repeats the allegations quoted above, merely changing the plural "defendants" to refer solely to Dr. Sundaram. Id. at 73. The complaint states that its purpose is "to redress acts, conduct, omissions, negligence and medical malpractice committed by [Dr. Sundaram[.] ]" Id. at 72.

Expert-Related Discovery Issues

[7] The discovery process was fraught with conflict largely caused by Shaw. On July 2, 2014, the trial court entered a proposed case management order. The order set a trial date of January 11, 2016, and ordered the parties to, among other things, provide a final witness and exhibit list no later than sixty days before trial. The order further required Shaw to file all expert disclosures no later than 120 days before trial (September 15, 2015). The proverbial wheels came off following this order.

• On September 11, 2015, Shaw preliminarily identified two experts by name only. No disclosure of the opinions of the experts was provided and Shaw requested an extension of time to name additional experts. The trial court extended the deadline to September 30, 2015, over Dr. Sundaram's objection.
• On September 30, 2015, Shaw provided a supplemental preliminary expert disclosure. This disclosure named, in relevant part, Dr. Joye Carter, and stated only that "[i]t is anticipated that Joye Carter, M.D. will testify as to cause of death[.]" Id. at 213.
• On November 5, 2015, Dr. Sundaram filed a motion to compel based upon Shaw's failure to respond to discovery requests regarding expert witnesses.
• On November 10, 2015, Shaw filed his final witness and exhibit list, naming four doctors, including Dr. Carter, as experts.
• Dr. Sundaram moved to continue the trial based on Shaw's failure to properly and timely disclose his expert witnesses and their opinions. On January 4, 2016, the trial court granted the motion to compel, ordering Shaw to respond to Dr. Sundaram's outstanding expert discovery by January 29, 2016. The trial court also reset the trial date to April 17, 2017. The trial court did not extend the expert disclosure deadlines based on the new trial date because both parties assured the court that no one needed additional time for expert disclosures. Id. at 37.
• On January 29, 2016, Shaw sent supplemental responses to Dr. Sundaram's discovery requests that still failed to provide any information about his experts' opinions.
• Thereafter, Dr. Sundaram filed a second motion to compel, which the trial court granted, ordering Shaw to answer discovery by May 9, 2016. The trial court also awarded monetary sanctions to Dr. Sundaram based on Shaw's dilatory discovery practice.
• Following the second motion to compel, Shaw finally provided substantive answers regarding his experts' opinions. As to each of the disclosed experts, their opinions dealt only with the alleged breach of the standard of care related to Dr. Sundaram's decision to perform the surgery. No expert opinions related to informed consent were disclosed.

[8] On September 19, 2016, Shaw served a supplemental final witness list. For the first time, Dr. Allen Griggs appeared on the list. Dr. Sundaram's counsel responded to Shaw's counsel in a letter, noting that this was the first inclusion of Dr. Griggs, that it was long past the deadline for disclosure of experts, and that Shaw had provided no information regarding Dr. Griggs's opinions. Shaw did not respond. Dr. Sundaram's counsel wrote another letter two weeks later, noting that the objection to Dr. Griggs still stood and asking that if Shaw intended to use Dr. Griggs at trial to please inform Dr. Sundaram immediately. Shaw did not respond.

[9] In January 2017, Shaw began losing confidence that Dr. Carter would be willing and/or able to testify as an expert witness because of difficulties communicating with her. Therefore, he began focusing more attention on Dr. Griggs, who would give substantially similar testimony.

[10] On February 24, 2017, Shaw served supplemental answers to interrogatories, which, for the first time, included cause of death opinions of Dr. Griggs. On February 28, 2017, Shaw moved the trial court to permit him to substitute Dr. Griggs for Dr. Carter, or alternatively, to extend the expert disclosure deadline, explaining that he had had significant difficulty contacting and communicating with Dr. Carter, who had moved out of state. On March 15, 2017, the trial court denied Shaw's motion to substitute and barred Dr. Griggs from testifying, stating as follows:

The Court finds it would be highly prejudicial to permit the Plaintiff to substitute Dr. Griggs as an expert witness for Dr. Carter just 47 days before a two week jury trial. The Plaintiff has had many previous opportunities to disclose its expert witnesses and that deadline has long expired. The Court further finds it would be highly prejudicial to the Defendant to extend the expert deadline as the two week jury trial starts on April 17, 2017 in 41[ ] days.

Appellant's App. Vol. V p. 53.

[11] At the March 20, 2017, final pretrial conference, Shaw's difficulty communicating with Dr. Carter came up again. Shaw's counsel and the trial court had the following discussion:

Court: ... You can find [Dr. Carter] because she was-I swear she was here. I-my court reporter will tell you what day....
Counsel: Well, we'll-we'll track her down [be]cause we had sent her ... I sent her some correspondence and she didn't respond. But I can track her down but it-the point is that her testimony was anticipated to last about an hour on the cause of death. And from an economic standpoint if she's not out of state that's 2 days for her to be here so it goes about a $2500 expense to about a 15 to 20,000 expense ....
Court: Well ... we've had experts-we had one in that trial that testified by ... video live.
Counsel: Well we may-we may try to do something like that then.
Court: You talk to [the court reporter]. She can make sure that happens.
Counsel: That solves our problem then....

Appellee's Br. p. 16-17.

[12] On April 12, 2017, Shaw filed another motion requesting that the trial court allow him to substitute Dr. Griggs for Dr. Carter or, alternatively, that the trial be continued. The trial court denied the motion, emphasizing that at the final pretrial conference, "the attorneys for the parties said they were ready to proceed to jury trial on a case scheduled for 2 weeks." Appellant's App. Vol. II p. 21. The same day, the trial court issued a second sanctions order awarding sanctions to Dr. Sundaram for Shaw's discovery practice, noting that "the Plaintiff's counsel has on multiple occasions failed to comply with the trial rules and orders of this court." Appellee's App. Vol. V p. 173.

[13] On April 13, 2017, the trial court notified the parties that Dr. Carter had contacted the court and would be able to testify for Shaw on April 20, 2017, via video conference. On April 17, 2017, the first day of trial, counsel for Shaw stated that he reserved the right to call Dr. Griggs as a rebuttal witness and did not plan to call Dr. Carter-even though she was available to testify via video conference. Counsel stated that "we determined that it would cause more of a prejudice to our case if we were to call that witness than benefit. So therefore, we had to withdraw that particular witness." Tr. Vol. II p. 7. Counsel did not ask during trial that Dr. Griggs be permitted to testify as a primary expert witness, nor did counsel make an offer of proof regarding what the testimony would have been.

[14] Shaw's counsel later requested to call Dr. Griggs as a rebuttal witness. Tr. Vol. VI p. 223-24. Counsel stated that he planned to use Dr. Griggs to rebut Dr. Sundaram's testimony regarding what level of creatinine is fatal. Id. Counsel explained that "this was unanticipated evidence by a witness" and that "it's a very narrow reason that we want to offer a rebuttal testimony [in] that regard[.]" Tr. Vol. VII p. 63. Dr. Sundaram's counsel objected, noting that "[t]his is the third or fourth time they've tried to back door Dr. Griggs into-into this trial." Id. at 69.

[15] The trial court denied the request to call Dr. Griggs as a witness, noting that known and anticipated witnesses, even if presented in rebuttal, must be identified pursuant to a court order or to a proper discovery request. Id. at 76. The trial court went through the lengthy discovery history of the litigation, noting the many hard and clear deadlines that had been put in place throughout the proceedings and the many extensions of those deadlines it had afforded to Shaw. The trial court observed that

we've been over this and over this and I feel like it is a run around the Court's prior order which I issued on March the 15th, not permitting Dr. Griggs['s] testimony. I don't know what the issues are with Dr. Carter and you, [counsel for Shaw].... So, I'm denying the request for Dr. Griggs to testify. He's not an unanticipated rebuttal witness.

Id. at 82-83. Although afforded the opportunity to do so, Shaw did not make an offer of proof regarding Dr. Griggs's testimony.

Motion in Limine Regarding Informed Consent

[16] On March 13, 2017, Dr. Sundaram filed multiple motions in limine. Relevant to this case is Motion in Limine B, which sought to bar any new claim not submitted to the MRP, including any undisclosed claim regarding informed consent. At the March 20, 2017, final pretrial conference, the trial court noted that Shaw had not designated any expert opinion or evidence related to the issue of informed consent:

[The cases are] all clear that you-you have to-you have to put on notice that one of the issues-you don't have to go into detail. It's [sic] doesn't have to be formal or anything. But-you know-there's lack of informed consent. But that was not heard by the medical review panel. Because you have to have expert testimony on that issue.

Appellee's Br. p. 16. The trial court took the issue under advisement and later issued a lengthy order granting Motion in Limine B. It explored relevant caselaw and noted that a claim of informed consent is separate and apart from a claim of medical negligence. The court reviewed Shaw's complaints filed with the IDOI and the trial court, discovery responses, and submissions to the MRP, and found that Shaw had

never made any mention that the issue of lack of informed consent was something the MRP should consider when determining if there was practice below the standard of care.... This Court finds that the operative facts plead could not lead one to possibly infer that Plaintiffs were alleging a claim of lack of informed consent.

Appellee's App. Vol. IV p. 146.

[17] At the trial, Shaw's counsel asked Kelli questions regarding informed consent. Dr. Sundaram objected and the trial court sustained the objection. Shaw did not make an offer of proof. Following the close of evidence, the parties and the trial court discussed the final jury instructions. The parties agreed that the following instruction could be given to the jury:

Throughout the course of this trial, you have heard evidence regarding informed consent for the treatment Dr. Sundaram provided to [Jay] and you have heard evidence regarding decisions of the medical team. You are instructed that informed consent and the negligence of other members of the medical team are not issues to be decided in this case. Therefore, you should not consider this in your deliberations.

Tr. Vol. VII p. 96-97.

[18] On April 25, 2017, the jury found in favor of Dr. Sundaram and the trial court entered judgment in his favor. Shaw later filed a motion to correct error, which the trial court denied in relevant part in a thirty-eight-page order. Shaw now appeals.

Discussion and Decision

I. Dr. Griggs

[19] Shaw first argues that the trial court erred in two respects related to Dr. Griggs: (1) by denying his request to substitute Dr. Griggs for Dr. Carter as a primary expert witness; and (2) by denying his request to call Dr. Griggs as a rebuttal expert witness. The decision to admit or exclude evidence, including expert testimony, is a matter within the discretion of the trial court. Horn v. Jara , 63 N.E.3d 1, 3 (Ind. Ct. App. 2016), trans. denied . We will reverse only if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn therefrom. Id. Even if the trial court's ruling is erroneous, we will reverse only if the error is inconsistent with substantial justice. Id. To determine whether this test is met, we must assess the probable impact upon the trier of fact. Linton v. Davis , 887 N.E.2d 960, 965-66 (Ind. Ct. App. 2008).

A. Substitution for Dr. Carter

[20] Shaw argues that the trial court should have permitted him to substitute Dr. Griggs for Dr. Carter as a primary expert witness after he began experiencing communication difficulties with Dr. Carter.

[21] In the trial court's order denying Shaw's motion to correct error, it first went through the lengthy history of Shaw's dilatory discovery practice, which included two orders to compel and two sanctions awards to Dr. Sundaram. It then explained that it would not condone Shaw's tardy attempts to proffer Dr. Griggs as a substitute witness for Dr. Carter:

The Plaintiff's attorney had many opportunities from November of 2013 when the complaint was filed until May 9, 2016 to disclose his expert witnesses and their opinions. In this case, the Plaintiff's counsel did not disclose or inform the Court or Defendant's counsel until September 19, 2016 he might want to use Dr. Griggs but never provided Dr. Grigg's opinions until 47 days before the jury trial. In addition, he wanted Dr. Griggs to testify instead of Dr. Carter. At first, Plaintiff's counsel informed the Court he could not locate Dr. Carter then the Court informed the Plaintiff's counsel that Dr. Carter had testified in this Court in January of 2017. Then Plaintiff's counsel said he did not want to incur the costs to transport Dr. Carter from Texas to Indiana and the Court permitted her to testify via video conferencing over the Defendant's objection. Ultimately, the Plaintiff's counsel elected not to call Dr. Carter in his case to testify as to the cause of death.
During this case, the Court was merely trying to ensure both parties would receive a fair trial and attempting to require that the Plaintiff's counsel comply with the discovery deadlines in this case.... This Court provided Plaintiff's counsel three extensions of time beginning on September 11, 2015 through May 9, 2016 to disclosure [sic] his expert witnesses and their opinions.... This Court has acted fairly and provided Plaintiff's counsel ample opportunity to disclose his expert witnesses and their opinions. This Court was required to enforce the deadlines set to insure the litigants both received a fair trial.

Appellant's App. Vol. II p. 60-62.

[22] In reviewing the order, it is apparent that the trial court was not only frustrated with counsel for Shaw for his discovery tactics but also questioned counsel's credibility. We decline to second-guess the trial court's assessment in this regard.

[23] In any event, Shaw first listed Dr. Griggs as an expert witness in September 2016-months before he began experiencing the alleged communication problems with Dr. Carter. As the expert disclosure deadline had come and gone a year earlier on September 30, 2015, the untimely disclosure of Dr. Griggs was a problem to begin with. The trial court evidently concluded that Shaw's later attempt to substitute Dr. Griggs for Dr. Carter was an improper attempt to bootstrap an untimely-disclosed witness into the trial, and we decline to second-guess that conclusion.

[24] Given the lengthy history of discovery violations by Shaw, we find that the trial court acted within its discretion to deny Shaw's request to substitute Dr. Griggs for Dr. Carter as a primary expert witness. We also note that even if we had found the decision erroneous, we would have no way of determining whether the error was reversible or not as Shaw did not make an offer of proof regarding what Dr. Griggs's testimony would have been; consequently, we could not evaluate its probable impact on the jury. In all respects, therefore, this argument is unavailing.

B. Dr. Griggs as Rebuttal Witness

[25] Next, Shaw argues that even if the trial court did not err by refusing to permit Dr. Griggs to testify as part of Shaw's case-in-chief, it should have permitted the physician to testify as a rebuttal witness.

[26] Our Supreme Court has squarely held that "the nondisclosure of a rebuttal witness is excused only when that witness was unknown and unanticipated; known and anticipated witnesses, even if presented in rebuttal , must be identified pursuant to a court order, such as a pre-trial order, or to a proper discovery request."

McCullough v. Archbold Ladder Co. , 605 N.E.2d 175, 179 (Ind. 1993) (emphasis added). Here, Dr. Griggs was obviously both known and anticipated, as Shaw spent a great deal of time and effort attempting to have him testify as part of Shaw's case-in-chief. Therefore, Shaw's failure to timely identify both Dr. Griggs and his opinions pursuant to the trial court's case management order and Dr. Sundaram's discovery requests prevented his ability to call Dr. Griggs as a rebuttal witness. The trial court did not err by denying this request.

[27] Furthermore, yet again Shaw did not make an offer of proof regarding what Dr. Griggs's rebuttal testimony would have been. We therefore have no way of evaluating what the probable impact of that testimony would have been on the jury. Shaw is not entitled to relief on this basis.

II. Informed Consent

[28] Shaw also argues that the trial court erroneously granted Dr. Sundaram's motion in limine, thereby preventing Shaw from litigating any claim related to informed consent. As above, the decision to admit or exclude evidence is within the trial court's sound discretion, and we will reverse only if the decision is clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn therefrom. Horn , 63 N.E.3d at 3.

[29] In McKeen v. Turner , our Supreme Court approved of this Court's holding that " 'a plaintiff may raise any theories of alleged malpractice during litigation following the MRP process if (1) the proposed complaint encompasses the theories, and (2) the evidence relating to those theories was before the MRP.' " 71 N.E.3d 833, 833 (Ind. 2017) (quoting McKeen v. Turner , 61 N.E.3d 1251, 1262 (Ind. Ct. App. 2016) ). The parties spend a great deal of time arguing about whether Shaw's informed consent claim meets this test, but we need not address that issue and will assume solely for argument's sake that the informed consent claim meets the McKeen test.

[30] It is well settled that expert testimony is required to establish whether a physician has or has not complied with the standard of a reasonably prudent physician with respect to informed consent. Culbertson v. Mernitz , 602 N.E.2d 98, 103-04 (Ind. 1992). As exhaustively set forth herein, the discovery process in this case stretched out for years. Shaw ended up naming five expert witnesses, including Dr. Griggs. When Shaw finally elected to comply with the trial court's discovery orders by explaining the opinions each of his experts would testify to and the general bases therefor, not once did he state that any of his experts would testify regarding informed consent. Injecting the issue of informed consent into the case at the eleventh hour, having given Dr. Sundaram no indication whatsoever that it would be addressed by any of the experts, would have been improper even if the McKeen test had been met. Under these circumstances, the trial court did not err by granting the motion in limine.

[31] Moreover, at no point during the trial did Shaw make any offers of proof regarding an informed consent claim. See Spar v. Cha , 907 N.E.2d 974, 979-80 (Ind. 2009) (a successful informed consent claim requires proof of nondisclosure of required information, actual damage resulting from the risks of which the patient was not informed, that the patient would have rejected the medical treatment had he known the risk, and that reasonable persons if properly informed would have rejected the proposed treatment); see also Miller v. State , 716 N.E.2d 367, 370 (Ind. 1999) (holding that to preserve an error in a ruling on a motion in limine for appellate review, a party must do more than challenge the ruling itself; the party must offer the evidence at trial to give the trial court an opportunity to rule on its admissibility at that time). Shaw failed to make an offer of proof as to what information was not disclosed, what damages resulted from the risks of which the patient was not informed, and whether Jay would have rejected the medical treatment had he known the risk. He also failed to make an offer of proof as to expert testimony regarding what a reasonably prudent physician should tell a patient for a proper informed consent. At the close of the evidence, the trial court gave the parties the opportunity to make a record on any issue they desired. Shaw declined. Therefore, our ability to review this claim is substantially limited, if not nonexistent. Shaw is not entitled to relief on this basis.

[32] The judgment of the trial court is affirmed.

May, J., and Robb, J., concur.

      An infectious disease specialist later evaluated Jay and concluded that he might also have influenza, so he was also started on Tamiflu.

      Pursuant to Indiana law on wrongful death actions filed by parents, Kelli was named as a defendant. Ind. Code § 34-23-2-1.

      The initial case management order set an earlier trial date, but the trial was later reset for January 11, 2016.

      In November 2011, Dr. Sundaram had propounded interrogatories asking, among other things, that Shaw identify each person expected to testify as an expert witness, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion. Appellant's App. Vol. IV p. 142-56; see also Ind. Trial Rule 26(B)(4)(a)(i).

      The trial court's order states at one point that it is forty-seven days before trial and at another point that it is forty-one days before trial.

      We were not able to find the transcript of this hearing in the record on appeal.

      After Dr. Sundaram testified, a juror asked Dr. Sundaram, "What level number of creatinine is fatal in a patient?" Tr. Vol VI p. 93-94. Dr. Sundaram's response is the testimony Shaw intended Dr. Griggs to rebut. Neither attorney objected to the question or the answer, though the trial court later indicated it would have sustained such an objection had one been made. Tr. Vol. VII p. 79 ("I can guarantee you if either party would have objected to this question, I would not have permitted it.").

      Shaw argues that the July 2, 2014, case management order permitted him to file expert disclosures no later than 120 days before trial, and that the deadline was later moved to 90 days before trial as part of a January 4, 2016, pretrial order. What he neglects to recognize, however, is that at the pretrial conference precipitating the January 4, 2016, order, the trial court "was provided assurances from both attorneys that no one needed additional time for expert disclosures. The attorneys agreed they had the experts they needed, so the Court did not need to extend the expert disclosure deadlines based on the new trial date." Appellant's App. Vol. II p. 37. In other words, the expert disclosure deadline was never extended beyond September 30, 2015 . Shaw does not dispute the trial court's recitation of events, though he does contend that the deadline was implicitly extended. We disagree.

      We also note that Shaw agreed to a final jury instruction explicitly removing the issue of informed consent from consideration.


source: Caselaw Access Project

author: May, Judge.

license: Public Domain

text:
    Daniel T. O'BRYANT, d.b.a. O'Bryant Transport LLC, Appellant-Defendant, v. Alan P. ADAMS, Luan Adams, d.b.a., A.L.A. Trucking, Inc., Appellee-Plaintiff
    Court of Appeals Case No. 48A02-1711-PL-2709
    Court of Appeals of Indiana.
    FILED August 9, 2018
    Attorney for Appellant: Scott A. Norrick, Attorney at Law, P.C., Anderson, Indiana
    Attorneys for Appellee: Andrew F. Marquis, Scopelitis, Garvin, Light, Hanson, & Feary, P.C., Indianapolis, Indiana
   May, Judge.

[1] Daniel T. O'Bryant, doing business as O'Bryant Transport, LLC (collectively "O'Bryant"), appeals the trial court's dismissal of its claims against Alan P. Adams and Luan Adams, doing business as A.L.A. Trucking, Inc. (collectively "ALA"). The trial court dismissed the case because the contract between O'Bryant and ALA required any litigation resulting from the parties' agreement to be filed in Texas. Because that forum selection clause is valid and enforceable, we affirm the trial court's dismissal of O'Bryant's claims.

Facts and Procedural History

[2] Both O'Bryant and ALA are located in and do business in Indiana. On December 15, 2015, O'Bryant and ALA entered into an Independent Contractor Agreement ("Agreement") under which O'Bryant was to provide "transportation related services and the Equipment" in return for certain compensation by ALA. (App. Vol. II at 98.) O'Bryant agreed to provide drivers and equipment, and he was also required to ensure compliance with state laws. ALA agreed to treat O'Bryant as an independent contractor rather than an employee and to compensate O'Bryant with "80% of gross receipts and 100% of fuel surcharge, per load [after] withhold[ing] 3 cents per mile[.]" (Id. at 108.)

[3] The Agreement included a forum selection clause ("FSC") that stated:

19. COMPLETE AGREEMENT. This Agreement, including any Appendices attached, constitutes the sole, entire, and existing agreement between the parties herein, and supersedes all prior agreements and undertakings, oral and written, expressed or implied, or practices, between the parties, and expresses all obligations and restrictions imposed on each of the respective parties during its term, except those specifically modified or changed by mutual written agreement between [ALA] and [O'Bryant]. This Agreement shall be deemed to have been drawn in accordance with the statutes and laws of the State of Texas and in the event of any disagreement or litigation, the laws of this state shall apply and suit must be brought in this state, except that [ALA] may bring suit against [O'Bryant] in any state where [O'Bryant] resides or is located.

(Id. at 105.)

[4] On March 16, 2017, O'Bryant filed a complaint against ALA in Madison County, Indiana. On May 5, 2017, O'Bryant amended the complaint. O'Bryant alleged ALA had breached the Agreement by, instead of reimbursing O'Bryant as an independent contractor pursuant to Section 7 and Appendix B of the Agreement, O'Bryant had worked at ALA's "office, as Operations Manager, without employee salary or benefits, throughout the majority of the year 2016[.]" (Id. at 95.) O'Bryant alleged ALA had breached the contract "by failing and refusing to perform in good faith their promise to insure [sic] return of equity, payment for work, fees, costs and expenses." (Id. ) O'Bryant also alleged ALA fraudulently induced O'Bryant to sign the Agreement by making "material misrepresentations" regarding the work O'Bryant was to do and the outcome of his investments. (Id. at 96.)

[5] On May 26, 2017, ALA filed a motion to dismiss in which ALA asserted: 1) pursuant to Trial Rule 12(B)(2), O'Bryant's claim in Indiana was barred because the FSC controlled "regarding personal jurisdiction," (id. at 80) (formatting altered), and O'Bryant could only file a claim in Texas per the FSC; and 2) pursuant to Trial Rule 12(B)(6), O'Bryant's complaint failed to state a claim for which relief could be granted. While also responding with arguments about personal jurisdiction doctrines and forum non conveniens , O'Bryant filed an answer to ALA's reply arguing the FSC was ambiguous and therefore permissive, rather than mandatory. O'Bryant argued that, when signing the Agreement in Indiana, O'Bryant understood the reference to "this state" in section 19 to indicate Indiana. (Id. at 42.) O'Bryant argued the phrase "suit must be brought in this state," (id. at 105), "neither identifies a venue nor contains a specific grant of exclusivity." (Id. at 43.) He contended that because the FSC is permissive and inadequate, the case is properly brought in Indiana, where both parties are located and do business. ALA countered that "this state," (id. at 105), is in the same sentence as "laws and statutes of Texas," (id. ); thus, "this state," (id. ), must refer to Texas and not Indiana. The trial court held a hearing on ALA's motion on August 15, 2017.

[6] On August 31, 2017, finding the parties were "all either businesses or the owners thereof," (id. at 14), the trial court granted ALA's motion based on its allegations under Indiana Trial Rule 12(B)(2) pertaining to jurisdiction. The trial court found and concluded:

[O'Bryant] contends that the forum selection provision should not be enforced because it is ambiguous and permissive. However, the Court finds that the provision is unambiguous and mandatory. The provision specifically states that the agreement is drawn in accordance with the statutes and laws of the State of Texas and then refers back to the State of Texas within the same sentence by using the term "this state." The only logical conclusion to the meaning of "this state" is that it refers to the State of Texas. Furthermore, the provision uses the mandatory language "must be brought" when requiring the suit to be litigated in the State of Texas. This language "precludes the possibility of venue in any other forum." See Coral Chemical Co. v. Chemetall U.S., Inc., Cas No. 16-cv-23, 2016 WL 3521952, *7 (S.D. Ind. June 28, 2016).
The Court also finds that [O'Bryant] has failed to demonstrate that the forum selection provision is unreasonable and unjust under the circumstances, and that there is any evidence of fraud or overreaching. In fact, [O'Bryant] gives little attention to these elements in his responsive filings other than to make the blanket statements that the forum selection provision is (1) "based on the fraudulent conduct of [ALA]"; (2) "enforcement of that clause would be unreasonable and unjust"; and (3) "[ALA], ..., have merely inserted that permissive clause to avoid litigation by causing inconvenience." See [O'Bryant]'s Answer to [ALA]s' Motion to Dismiss Amended Complaint, p. 2; [O'Bryant]'s Answer to [ALA's] Reply in support of Motion to Dismiss Amended Complaint, p. 7, footnote 1. These assertions alone failed to give the Court any grounds on which to find the forum selection provision unenforceable.
Moreover, the Court finds that the provision was freely negotiated.
* * * * *
Plaintiff alleges in its Amended Complaint that the parties are all either businesses or the owners thereof. Plaintiff's Amended Complaint, ¶¶ 2 and 8. Plaintiff further alleges that the parties "entered into and affixed signatures to an Independent Contractor Agreement (hereafter 'The Agreement'), included herein and attached hereto." Plaintiff's Amended Complaint, ¶ 9. Nothing in Plaintiff's Amended Complaint or responses to Defendants' Motion to Dismiss demonstrates that the parties negotiated the Independent Contractor Agreement from unequal bargaining positions. " 'Because we presume that contracts represent the freely bargained agreement of the parties, we conclude that this agreement represents the freely negotiated wishes of both parties." Grott v. Jim Barna Log Systems-Midwest, Inc. , 794 N.E.2d at 1102.

(Id. at 13-14) (errors and ellipsis in original).

[7] On September 25, 2017, O'Bryant filed a motion to correct error, alleging the same arguments it had in previous filings, together with a new argument that Texas would "not entertain a dispute over the Indiana contract in the courts of that State[.]" (Id. at 21.) In support of the new argument, O'Bryant's attorney submitted an affidavit stating he had contacted an unnamed attorney in Texas and been told "O'Bryant had no remedy in the State of Texas based on the fact that none of the parties maintained an operational business in that state and therefore, the State of Texas would not accept personal jurisdiction over the parties to any law suit." (Id. at 133.) ALA responded and noted the affidavit from O'Bryant's counsel was improper because 1) the only way to introduce new evidence with a motion to correct error is if the evidence is newly discovered and could not have been discovered and produced earlier and 2) the affidavit did not prove any truth but was merely "inadmissible hearsay and conclusory legal statements." (Id. at 37.) By chronological case summary notation, the trial court denied O'Bryant's motion to correct error.

Discussion and Decision

[8] O'Bryant argues the trial court abused its discretion when it granted ALA's motion to dismiss because the FSC was permissive and because the Agreement is unenforceable as it was signed under fraudulent circumstances and would deprive O'Bryant of a remedy at law. O'Bryant does not argue the trial court erred when it denied O'Bryant's motion to correct error.

[9] In its motion to correct error, for the first time, O'Bryant alleged Texas would not accept jurisdiction. A new issue may not be raised for the first time in a motion to correct error or on appeal. Rodgers v. Rodgers , 503 N.E.2d 1255, 1257 (Ind. Ct. App. 1987), reh'g denied, trans. denied. Per Indiana Trial Rule 59, a party may use a motion to correct error to present "newly discovered material evidence ... which, with reasonable diligence, could not have been discovered and produced at trial[.]" The affidavit provided by O'Bryant's attorney could have been produced at any time during these proceedings. Therefore, we cannot say the court abused its discretion by refusing to reconsider its order (or find its judgment erroneous) on the basis of the affidavit. See Hawkins v. Cannon , 826 N.E.2d 658, 664 (Ind. Ct. App. 2005) (no error in denial of motion to correct error when evidence could have been discovered and produced at trial with due diligence), trans. denied .

[10] Although O'Bryant does not argue the trial court erred when it denied the motion to correct error, our standard of review for appeal of a motion to correct error nevertheless directs us to consider the underlying order, here the order granting ALA's motion to dismiss pursuant to Trial Rule 12(B)(2). See In re Paternity of H.H. , 879 N.E.2d 1175, 1177 (Ind. Ct. App. 2008) (review of motion to correct error includes review of underlying order). It is proper to challenge the personal jurisdiction of a trial court with a motion to dismiss pursuant to Indiana Trial Rule 12(B)(2). Simek v. Nolan , 64 N.E.3d 1237, 1241 (Ind. Ct. App. 2016). The standard of review of a trial court's grant or denial of a motion to dismiss based on whether personal jurisdiction exists is de novo . Sohacki v. Amateur Hockey Assoc. of Illinois , 739 N.E.2d 185, 188 (Ind. Ct. App. 2000). When reviewing matters involving personal jurisdiction, the party challenging jurisdiction has the burden of establishing the lack thereof by a preponderance of the evidence. Id. Upon appeal from a motion to dismiss on grounds of lack of jurisdiction, the Court of Appeals is in as good a position as the trial court to determine whether it has jurisdiction. Zollman v. Gregory, 744 N.E.2d 497, 498 (Ind. Ct. App. 2001), trans. denied .

[11] The jurisdictional issues in this case arise from the forum selection clause found in the contract between the parties. Forum selection clauses are not per se invalid. Horner v. Tilton, 650 N.E.2d 759, 763 (Ind. Ct. App. 1995), reh'g denied, trans. denied. Provisions seeking to "limit the litigation of future actions to particular courts or places are enforceable if they are reasonable and just under the circumstances, and there is no evidence of fraud or overreaching such that the agreeing party, for all practical purposes, would be deprived of a day in court." Grott v. Jim Barna Log Sys.-Midwest, Inc. , 794 N.E.2d 1098, 1102 (Ind. Ct. App. 2003), trans. denied. The reviewing court must also determine the provision was freely negotiated. Id. The party claiming unfairness bears the burden of proof. Id.

Permissive or Mandatory

[12] O'Bryant contends the trial court erred when it dismissed this suit because the FSC was permissive rather than mandatory. O'Bryant argues the language referencing "this state," (App. Vol. II at 105), was ambiguous. Additionally, O'Bryant argues the FSC "neither identifies a venue nor contains a specific grant of exclusivity." (Br. of Appellant at 13.) Due to these alleged deficiencies and ambiguities, O'Bryant maintains the FSC is permissive and the case need not be filed in Texas.

[13] The unambiguous language of a contract is conclusive and binding on the parties and on the court, and if the language is unambiguous, the parties' intent is determined from the four corners of the document. Peoples Bank & Trust Co. v. Price , 714 N.E.2d 712, 716 (Ind. Ct. App. 1999), trans. denied . "The terms of a contract are not considered ambiguous merely because a controversy exists between the parties concerning the proper interpretation of terms." George Uzelac & Assocs., Inc. v. Guzik , 663 N.E.2d 238, 240 (Ind. Ct. App. 1996), trans. denied . "Generally, the courts should presume that all provisions included in a contract are there for a purpose ...." Indianapolis-Marion Cnty. Pub. Library v. Shook, LLC , 835 N.E.2d 533, 541 (Ind. Ct. App. 2005).

"This State"

[14] The FSC states the Agreement "shall be deemed to have been drawn in accordance with the statutes and laws of the State of Texas and in the event of any disagreement or litigation, the law of this state shall apply and suit must be brought in this state ...." (App. Vol. II at 105) (emphasis added). O'Bryant contends that because the Agreement was signed in Indiana, it understood "this state" to refer to Indiana. ALA counters that the only state listed in the clause was Texas, and therefore the only state "this state" could refer to was Texas. ALA argues O'Bryant's mistaken interpretation does not render the FSC ambiguous. The trial court agreed with ALA.

[15] We agree with ALA and the trial court. Under the ejusdem generis rule, "when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed." BLACK'S LAW DICTIONARY (10th ed. 2014). Here, the specific item is the "statutes and laws of the State of Texas," (App. Vol. II at 105), while the general term is "this state." (Id. ) Therefore, "this state" means Texas and not Indiana, regardless of where the parties signed the Agreement. See Westfield Companies v. Knapp, 804 N.E.2d 1270, 1275 (Ind. Ct. App. 2004) (a pickup truck is not considered mobile equipment when "mobile equipment" is listed as including "air compressor, pumps and generators ... or [c]herry pickers ..."), reh'g denied, trans. denied . While O'Bryant may have misconstrued the meaning, under general contract interpretation rules, it is not reasonable to interpret "this state" to mean Indiana rather than Texas. See Perryman v. Motorist Mut. Ins. Co. , 846 N.E.2d 683, 687 (Ind. Ct. App. 2006) (goal of contract interpretation is to ascertain and enforce the parties' intent as manifested in the language of the contract).

Venue and Exclusivity

[16] O'Bryant contends the FSC does not identify a specific individual county in Texas and grant exclusive jurisdiction to that venue; therefore, it argues, the FSC is permissive and not mandatory. ALA counters the language does identify a venue and grants it exclusivity.

[17] In Carnival Cruise Lines, Inc. v. Shute , 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991), both parties were domiciled in the United States. Carnival's principal place of business was Florida, but it operated in many other states. The Shutes lived in Washington. Ms. Shute was injured while on a cruise off the coast of Mexico. The FSC in that case designated any disputes were to be litigated "before a Court located in the State of Florida, U.S.A., to the exclusion of the Courts of any other state or country." Id. at 587-88, 111 S.Ct. 1522. The FSC did not designate a county wherein a suit was required to be brought; rather, the suit merely had to be brought in Florida. The Supreme Court held the forum selection clause was valid.

[18] In Mechanics Laundry & Supply, Inc. v. Wilder Oil Co., Inc. , 596 N.E.2d 248 (Ind. Ct. App. 1992), reh'g denied, trans. denied , we adopted the holding of Carnival regarding FSCs wherein parties have consented "by contract to the exercise of personal jurisdiction by courts that otherwise might not have such jurisdiction." 596 N.E.2d at 251. Therefore, the lack of designation of a particular county in Texas does not invalidate the FSC here.

[19] O'Bryant also argues the FSC is permissive because the word "shall" does not grant exclusive jurisdiction to Texas. In Indiana, we have held the word "shall" indicates the subsequent language is mandatory. See, e.g., Harris v. Delaware Cnty. Div. of Family & Child. Servs. , 732 N.E.2d 248, 249 (Ind. Ct. App. 2000) (trial rule employing the word "shall" makes the rule mandatory), reh'g denied; Indiana Gaming Co., L.P. v. Blevins , 724 N.E.2d 274, 278 (Ind. Ct. App. 2000) ("shall" language in agreement necessitates certain parties be included as third-party beneficiaries), trans. denied . Nevertheless, the FSC in this matter states not only that the Agreement was made "in accordance with the statutes and laws of the State of Texas and ... the laws of this state shall apply ..." but also that "suit must be brought in this state[.]" (App. Vol. II at 105) (emphases added). Therefore, because the FSC states the laws of Texas shall apply and the parties must bring suit in Texas, Texas has exclusive jurisdiction.

Enforceability

[20] O'Bryant contends the FSC is not enforceable because it deprives O'Bryant of a remedy at law.

"[C]ontractual provisions ... that seek to limit the litigation of future actions to particular courts or places are enforceable if they are reasonable and just under the circumstances and there is no evidence of fraud or overreaching such that the agreeing party, for all practical purposes, would be deprived of a day in court."

Mechanics , 596 N.E.2d at 250. In order to be enforceable, the FSC must be freely negotiated. Farm Bureau Gen. Ins. Co. of Michigan v. Sloman , 871 N.E.2d 324, 329 (Ind. Ct. App. 2007), trans. denied. Therefore, the FSC is required to be freely negotiated and also be just and reasonable.

Freely Negotiated
To determine whether a forum selection provision was freely negotiated, courts apply a fact-sensitive test involving a comparison of the bargaining position of the parties to the contract. A contract is unconscionable if there exists a great disparity in bargaining power between the parties, leading the weaker party to sign the contract unwillingly or without awareness of its terms. Indiana courts recognize the principle that parties are free to enter into contracts and, indeed, presume that contracts represent the freely bargained agreement of the parties. A standardized contract is not unenforceable merely because of the unequal bargaining power of the parties-there must also be a showing that the contract is unconscionable.

Dexter Axle Co. v. Baan USA, Inc. , 833 N.E.2d 43, 49 (Ind. Ct. App. 2005) (internal citations omitted).

[21] The record reveals O'Bryant and ALA are both businesses that entered into an arms-length business transaction. The trial court refers to the parties as "all either businesses or the owners thereof[,]" (App. Vol. II at 14), and that "[n]othing in [O'Bryant's] Amended Complaint or responses to Defendants' Motion to Dismiss demonstrates that the parties negotiated the [Agreement] from unequal bargaining positions." (Id. ) O'Bryant does not argue this assertion is incorrect. When parties are on equal footing, "the law will not protect one who fails to exercise common sense and judgment." Plymale v. Upright , 419 N.E.2d 756, 762 (Ind. Ct. App. 1981).

[22] In its brief, O'Bryant makes some blanket statements that ALA misrepresented facts as to recompense, but it does not argue it was unable to negotiate the FSC or that it had to accept the contract as written. The question of recompense is not before us-only the question regarding the applicability of the FSC is before us. O'Bryant makes no claim that it objected to the FSC or tried to omit it. Rather, O'Bryant simply argues it misunderstood the FSC to mean any litigation would occur in Indiana, rather than Texas, without arguing ALA had affirmatively stated that to be the case. Therefore, O'Bryant has not demonstrated it was unable to negotiate the FSC. We have no reason to upset the bargained-for language of the parties, and we conclude the FSC was freely negotiated and is enforceable. See Grott , 794 N.E.2d at 1103 (without evidence from complainant otherwise, reviewing court has no reason to assume the contract language was not freely negotiated).

Just and Reasonable

[23] O'Bryant asserts the FSC is unjust and unreasonable as it would deprive O'Bryant of its day in court and be against public policy because neither O'Bryant nor ALA are located in Texas. O'Bryant appears to be arguing Texas is an inconvenient forum or it has insufficient contacts with Texas for Texas to acquire personal jurisdiction over it. However, those issues are not available to O'Bryant because O'Bryant signed the contract and consented to jurisdiction in Texas. As noted above, O'Bryant has not shown it was unable to negotiate the terms of the agreement.

[24] To avoid litigation in Texas, O'Bryant must prove that holding trial in Texas will be "so gravely difficult and inconvenient that [it] will, for all practical purposes, be deprived of [its] day in court." Horner , 650 N.E.2d at 763-64 (quoting M/S Bremen v. Zapata Off-Shore Co. , 407 U.S. 1, 19, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) ). In Carnival , although the Shutes were located in Washington and the cruise they took was along the west coast of the United States, the Supreme Court held that venue in Florida was not enough of an inconvenience to make the FSC unjust or unreasonable. Carnival , 499 U.S. at 595, 111 S.Ct. 1522. While we recognize neither ALA nor O'Bryant is located in Texas, the fact remains that two business entities agreed to litigate any disagreements in Texas. If the Shutes, unsophisticated parties who agreed by signing a non-negotiable form contract, cannot show litigation in another State is sufficiently inconvenient to make the FSC unenforceable, we cannot hold this seemingly knowledgeable business entity, with the power and ability to negotiate the terms of the contract, can simply assert Texas, an agreed-upon forum, is too inconvenient to be reasonable and just.

[25] As to O'Bryant's contention it would be deprived its day in court, we again note O'Bryant waived that argument by not asserting Texas would not accept jurisdiction until it filed its motion to correct error. See Rodgers , 503 N.E.2d at 1257 (a new issue may not be raised for the first time in a motion to correct error or on appeal).

Conclusion

[26] As the trial court did not err when it dismissed O'Bryant's claim due to the FSC in the Agreement, the court did not abuse its discretion when it denied O'Bryant's motion to correct error. We therefore affirm.

[27] Affirmed.

Riley, J., and Mathias, J., concur.

      We note, at the onset, the lack of civility, in particular on the part of O'Bryant, throughout not only the trial proceedings but the appellate proceedings. Unnecessarily argumentative and snide comments such as, "This explanation [of persuasive authority] is made for edification of Defendant, not the Appellate Court. The first is apparently unaware - while Plaintiff is sure the latter is quite aware[,]" (Reply Br. at 11 n.3), degrade the parties' arguments by showcasing the incivility between the parties. We remind counsel of sections 1 and 9 of the Preamble of the Indiana Rules of Professional Conduct, which state: "Whether or not engaging in the practice of law, lawyers should conduct themselves honorably[;]" and "[The principles of the Rules of Professional Responsibility] include the lawyer's obligation to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system."

      Carnival was a case in admiralty and, thus, not binding on Indiana state courts; nevertheless, Indiana has adopted the Supreme Court's reasoning as it pertains to the validity of forum selection clauses. Farm Bureau Gen. Ins. Co. of Michigan v. Sloman , 871 N.E.2d 324, 329 (Ind. Ct. App. 2007), trans. denied.


author: Altice, Judge.

text:
    INDIANA BEHAVIORAL HEALTH AND HUMAN SERVICES LICENSING BOARD, Appellant-Respondent, v. Jenna THOMAS, Appellee-Petitioner
    Court of Appeals Case No. 79A02-1712-PL-2904
    Court of Appeals of Indiana.
    Filed August 10, 2018 Publication ordered September 12, 2018 Rehearing denied September 12, 2018
    Attorneys for Appellant: Curtis T. Hill, Jr., Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, Indiana
    Attorneys for Appellee: Brian A. Karle, Jason Ramsland, Lafayette, Indiana
    MEMORANDUM DECISION
   Altice, Judge.

Case Summary

[1] Following an administrative hearing, the Indiana Behavioral Health and Human Services Licensing Board (the Board) issued an order imposing disciplinary sanctions on Jenna Thomas. Thomas sought judicial review. The trial court found in Thomas's favor and concluded that the Board's order was void because the Board failed to issue it within ninety days of the administrative hearing, pursuant to Ind. Code § 4-21.5-3-27(g). On appeal, the Board argues that it did not lose jurisdiction to issue an order after the statutory ninety-day timeframe passed.

[2] We reverse.

Facts & Procedural History

[3] Thomas is a licensed clinical social worker in Indiana. On June 9, 2016, the State filed an administrative complaint against her for professional misconduct. The Board, acting as both the ultimate authority and an administrative law judge (ALJ) for the agency, conducted an administrative hearing on October 24, 2016. Thomas filed a motion to dismiss on February 24, 2017, arguing that "the Board ha[d] failed to comply with the requirements of AOPA in issuing an order within ninety (90) days following the hearing". Appellee's Appendix Vol. 2 at 3. On March 30, 2017, the Board issued its disciplinary order against Thomas, along with findings of fact. The Board placed Thomas's license on indefinite probation and imposed several terms and conditions. The Board also issued an order denying the motion to dismiss.

[4] On April 4, 2017, Thomas filed a petition for judicial review in which she did not challenge the facts underlying the disciplinary order or the sanctions imposed. Rather, Thomas argued that the order was untimely and therefore invalid. The trial court heard oral argument on October 31, 2017, and then issued an order granting the petition for judicial review on November 16, 2017. Ultimately, the court determined that when the Board failed to issue its order within ninety days, the Board lost jurisdiction of the case and its untimely subsequent order was void. The Board now appeals.

Discussion & Decision

[5] I.C. § 4-21.5-3-27(g) provides:

An order under this section shall be issued in writing within ninety (90) days after conclusion of the hearing or after submission of proposed findings in accordance with subsection (f), unless this period is waived or extended with the written consent of all parties or for good cause shown.

The Board concedes that it failed to issue the order within ninety days of the hearing but argues that this failure did not affect its jurisdiction or act to invalidate the subsequent order. Thomas, on the other hand, argues that the order is void because it was issued outside of ninety days.

[6] Our court has addressed this issue before with respect to a related AOPA statute. In Roman Marblene Co. v. Baker , 88 N.E.3d 1090, 1098 (Ind. Ct. App. 2017), trans. denied , we dealt with I.C. § 4-21.5-3-29(f), which provides:

A final order disposing of a proceeding or an order remanding an order to an administrative law judge for further proceedings shall be issued within sixty (60) days after the latter of:
(1) the date that the order was issued under section 27 of this chapter;
(2) the receipt of briefs; or
(3) the close of oral argument;
unless the period is waived or extended with the written consent of all parties or for good cause shown.

Relying on State v. Langen , 708 N.E.2d 617 (Ind. Ct. App. 1999), we held that despite the use of the word "shall" in the statute, the sixty-day time period was directory rather than mandatory. Roman Marblene , 88 N.E.3d at 1098. We observed that "the legislature did not intend the prescribed time period to be essential to the validity of the ultimate authority's final order." Id. We quoted the following language from Langen with approval:

Our review of subsection (f) leads us to believe that the legislature did not intend the prescribed time period to be essential to the validity of the Commission's final order. As is evident from the statute, no consequences attach in the event of an untimely order and under no circumstances has the legislature deprived the Commission of its ultimate authority to issue its final order. The statute neither purports to restrain the Commission from issuing a final order outside of the prescribed time period nor specifies that "adverse or invalidating consequences follow." Moreover, the purpose and intent of the sixty day time period is to promote the prompt and expeditious resolution of the administrative matters by the ultimate authority. The time period is not intended as a jurisdictional prerequisite to a valid final order. Accordingly, a mandatory construction of subsection (f) would thwart the intention of the legislature.

Roman Marblene , 88 N.E.3d at 1098 (quoting Langen , 708 N.E.2d at 622 (citations omitted) ). We then held, "although we understand Roman Marblene's frustration with the length of time it took for the ICRC to issue its final order, the order issued is not void." Id.

[7] In light of Roman Marblene and Langen , we conclude that the statutory period set forth in I.C. § 4-21.5-3-27(g) is directory rather than mandatory and, therefore, the Board's belated order is not void. See Roman Marblene , 88 N.E.3d at 1098 ; Langen , 708 N.E.2d at 621-22. Accordingly, the trial court erred when it vacated the Board's final order.

[8] Judgment reversed.

Najam, J., and Robb, J., concur.

Order

[1] Appellee, by counsel, filed a Motion for Publication.

[2] Having reviewed the matter, the Court finds and orders as follows:

1. The Appellee's Motion for Publication is granted.
2. This Court's opinion heretofore handed down in this cause on August 10, 2018, marked Memorandum Decision, is now ordered published.
3. The Clerk of this Court is directed to send copies of said opinion together with copies of this order to the West Publishing Company and to all other services to which published opinions are normally sent.

[3] Ordered.

[4] Najam, Robb, Altice, JJ., concur.

      I.C. § 4-21.5-3-29 applies in situations where the ALJ and the ultimate authority are not one in the same. In that instance, the ultimate authority reviews the order that was issued by the ALJ under section 27 and then issues a final order. When the ALJ is the ultimate authority, as in the case at hand, the final order is issued by the ALJ pursuant to section 27. Both sections provide time periods in which the orders "shall" be issued.