Timothy L. Doss v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 31 2017, 9:32 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jonathan M. Young Curtis T. Hill, Jr.
Law Office of Jonathan M. Young, P.C. Attorney General of Indiana
Newburgh, Indiana
Andrea E. Rahman
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Timothy L. Doss, May 31, 2017
Appellant-Petitioner, Court of Appeals Case No.
87A04-1609-PL-2095
v. Appeal from the Warrick Superior
Court
Indiana Department of Child The Honorable J. Zach Winsett,
Services, Judge
Appellee-Respondent. Trial Court Cause No.
87D01-1512-PL-1677

Pyle, Judge.

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 Statement of the Case
[1] Timothy L. Doss (“Doss”) appeals the trial court’s order that: (1) granted the

Indiana Department of Child Services’s (“DCS”) motion to dismiss Doss’s

petition for judicial review based on his failure to comply with the Indiana

Administrative Orders and Procedures Act’s (“AOPA”) requirement that a

petitioner must file a copy of the agency’s record, or an extension, within thirty

days of filing his petition; and (2) granted DCS’s motion to quash Doss’s

subpoena duces tecum. Doss argues that the trial court erred in both rulings.

Because our Indiana Supreme Court has held that a petitioner’s failure to timely

file the agency record or an extension results in dismissal of a petitioner’s

petition for judicial review and because Doss has not shown that the trial court

erred in its ruling on the motion to quash, we affirm the trial court’s order.

[2] We affirm.

Issues
1. Whether the trial court erred by granting DCS’s motion to
dismiss.

2. Whether the trial court erred by granting DCS’s motion to
quash Doss’s subpoena.

Facts1
[3] In September 2014, DCS received a report that Doss had sexually molested his

two-year-old grandson, and, after an investigation, DCS substantiated the

1
We note that, contrary to Indiana Appellate Rule 50(A)(2), Doss has failed to include all necessary
documents in his Appellant’s Appendix. For example, he failed to include the chronological case summary,

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 allegation. Thereafter, Doss challenged DCS’s substantiated abuse finding

through an administrative hearing before an DCS administrative law judge

(“ALJ”). After holding hearings on September 4 and October 26, 2015, the

ALJ issued a hearing decision (“Agency Decision”) on November 20, 2015 and

affirmed “the determination of DCS to substantiate child sexual abuse” against

Doss. (Doss’s App. Vol. 2 at 16).

[4] On December 21, 2015, Doss, by counsel, filed a petition for judicial review

with the trial court in Warrick County to challenge the Agency Decision.

Within one of the paragraphs in his petition—and not as a separate request to

DCS—Doss requested that DCS provide him with the agency record within

thirty days pursuant to INDIANA CODE § 4-21.5-5-13, the AOPA statute relating

to transmittal of an agency record (“Section 13”). Pursuant to this statute, Doss

was required to file a certified copy of the agency record, or an extension of

time to file the record, by January 20, 2016. Attached to the petition was an

uncertified copy of the Agency Decision. The petition did not include the

transcript from or the twenty-seven exhibits admitted during the agency

hearing.

[5] On January 13, 2016, DCS sent a letter (“DCS’s January 13th letter”) to Doss’s

counsel to inform Doss that DCS had received Doss’s petition for judicial

review on January 12, 2016. In its letter, DCS explained the process for

obtaining the agency record and the transcript of the administrative hearings.

the trial court’s order being appealed, and other relevant pleadings. DCS, however, has provided our Court
with the omitted documents in its Appellee’s Appendix.

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 Specifically, DCS informed Doss that it did not transcribe administrative

hearings in-house and that it would either: (1) outsource the transcription to a

company of DCS’s choosing; or (2) send a CD of the hearings to a

transcriptionist of Doss’s choice. DCS also informed Doss that, upon either

choice, the completed transcript would be sent to DCS for verification and

certification before it and the certified record would be sent to Doss.

[6] On January 18, 2016—two days before Doss was required to file the agency

record—Doss sent DCS a letter (“Doss’s January 18th letter), indicating his

personal choice of a transcriptionist (“Doss’s transcriptionist”). On January 21,

2016, a DCS employee, Elizabeth Giblin (“Giblin”), sent an email (“DCS’s

January 21st email”) to Doss’s transcriptionist to notify her that Giblin was

sending the CD of the hearings via FedEx ground service. Giblin carbon

copied (“Cc’d”) Doss’s attorney on this email to Doss’s transcriptionist. A few

days later, on January 27, 2016, Giblin sent a follow-up email (“DCS’s January

27th email”) to Doss’s transcriptionist to verify that she had received the CD on

January 25, 2016, as was indicated by the FedEx tracking. Again, Giblin Cc’d

Doss’s attorney on this email to Doss’s transcriptionist.

[7] On February 3, 2016, DCS filed a response to Doss’s judicial review petition.

In its response, DCS asserted that Doss’s petition was “not meritorious,” and it

“expressly reserve[d] all rights and defenses under AOPA and all applicable

law.” (Doss’s App. Vol. 2 at 20).

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[8] Shortly thereafter, on February 16, 2016, DCS filed a motion to dismiss Doss’s

petition for judicial review. Citing to the Indiana Supreme Court’s opinions in

Teaching Our Posterity Success, Inc. v. Ind. Dep’t of Educ., 20 N.E.3d 149 (Ind.

2014) (hereinafter, “TOPS”) and First Am. Title Ins. Co. v. Robertson, 19 N.E.3d

757 (Ind. 2014), amended on reh’g, 27 N.E.3d 768 (Ind. 2015), DCS argued that

Doss’s failure to timely file either the certified agency record or a request for an

extension of time prior to January 20, 2016 required the dismissal of his judicial

review petition.

[9] On March 15, 2016, Doss filed a response to DCS’s motion to dismiss. Doss

attached to his response a copy of the following documents as exhibits: (1)

DCS’s January 13th letter; (2) Doss’s January 18th letter; (3) DCS’s January

21st email; and (4) DCS’s January 27th email. In his response, Doss argued

that dismissal under the AOPA statute was discretionary and not mandatory.

He asserted that he had made a down payment for the transcript and that his

transcriptionist had informed him that the transcript would be ready within two

weeks. Additionally, Doss asserted that DCS’s motion to dismiss was “akin” to

a motion for default judgment and argued that he should not be found in

default because his failure to file the agency record was due to a “trap” set by

DCS that had sole control over the record. (DCS’s App. Vol. 2 at 16).

[10] Subsequently, on April 12, 2016, DCS filed a reply in support of its motion to

dismiss. DCS noted that Doss had “fail[ed] to acknowledge his statutory

requirement to timely file the agency record or otherwise seek an extension[.]”

(DCS’s App. Vol. 2 at 24). DCS also pointed out that Doss had failed to

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 dispute the Indiana Supreme Court’s opinions that established a “bright line”

rule for a judicial review petitioner’s compliance with the thirty-day deadline for

filing an agency record or an extension of time. (DCS’s App. Vol. 2 at 24, 26).

[11] The trial court then set a hearing on the motion to dismiss. Thereafter, on June

13, 2016, Doss filed a subpoena duces tecum (“subpoena”) to be served on DCS

employee Giblin. In the subpoena, Doss sought to have Giblin bring the

following documents to the motion to dismiss hearing: “Certified copies of any

and all communications, electronic or written, with any and all court reporters,

the [sic] Doss’s counsel, or any other third parties.” (Doss’s App. Vol. 2 at 36).

[12] DCS then filed a motion to quash Doss’s subpoena pursuant to Trial Rule

45(B). DCS argued, in part, that the subpoena was “unreasonable and

oppressive” because the material sought was outside of the agency record and

not relevant to the motion to dismiss. (Doss’s App. Vol. 2 at 32). DCS also

asserted that “[a]ny additional correspondence between [Doss], his counsel, and

DCS [wa]s wholly improper to consider at a hearing limited to [Doss’s] failure

to comply with the statutory mandates of AOPA.” (Doss’s App. Vol. 2 at 32).

[13] On August 10, 2016, the trial court held a hearing on DCS’s motion to dismiss

Doss’s judicial review petition. It also considered DCS’s motion to quash

Doss’s subpoena. During the hearing, the parties presented only argument,

which mirrored the arguments in their respective pleadings on the motion to

dismiss. Doss acknowledged that he did not timely file the agency record

within the required thirty-day period, but he did not acknowledge the statutory

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 AOPA provision that required him to file an extension within that same thirty-

day period when he was unable to file the record within the required time

period. Instead, he blamed DCS for his failure to file the agency record,

arguing that DCS had “walked” Doss into a “trap” and “d[id]n’t want [him] to

have a fair day in court.” (Tr. Vol. 2 at 7). Doss also blamed Giblin and DCS

for not telling him that he should ask for an extension, and he blamed the trial

court clerk for an initial delay in issuing Doss’s petition for judicial review to

DCS. Additionally, Doss argued that the trial court should find that DCS had

waived any right to file a motion to dismiss because it did not include that

argument in its response to his judicial review petition.

[14] In regard to DCS’s motion to quash Doss’s subpoena, Doss argued that he

wanted Giblin to bring the requested documents and provide testimony to

explain why she did not get the certified record to him by January 20. DCS

argued, as it did in its motion to quash, that the subpoena was unreasonable,

oppressive, and irrelevant.

[15] The following day, the trial court issued an order in which it: (1) granted

DCS’s motion to dismiss based on Doss’s failure to file the agency record or

seek an extension of time within the thirty-day period as required by Section 13

of AOPA; and (2) granted DCS’s motion to quash Doss’s subpoena. When

granting DCS’s motion to dismiss, the trial court also rejected Doss’s argument

that DCS, as keeper of the record, had set a trap for him by not providing him

with the agency record within thirty days. The trial court, citing relevant case

law, pointed out that the legislature recognized the possibility that a record

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 could not be filed within thirty days and that the AOPA statute provided a

petitioner “the ability to request an extension once it became clear that the

agency would be unable to produce the record to a petitioner in the time limits

so required.” (DCS’s App. Vol. 2 at 3).2 Doss now appeals.

Decision
[16] Doss argues that the trial court erred by: (1) granting DCS’s motion to dismiss

his petition for judicial review; and (2) granting DCS’s motion to quash his

subpoena. We will address each argument in turn.

1. Judicial Review

[17] We first address Doss’s argument that the trial court erred by granting DCS’s

motion to dismiss his petition for judicial review of DCS’s agency order. 3 Here,

DCS’s motion to dismiss Doss’s petition for judicial review was based on

Doss’s failure to comply with the AOPA statutory requirements regarding

timely filing of the agency record. Doss, however, contends that the language

of the AOPA statute was permissive and did not require dismissal of his

petition.

[18] “We review de novo a court’s ruling on motions to dismiss for failure to timely

file necessary agency records where the court ruled on a paper record.” TOPS,

2
The trial court also rejected Doss’s argument that this case was like a default judgment and that he should
not be found in default because he was not at fault for the delay in filing the record. Additionally, the trial
court apparently rejected Doss’s contention that DCS had waived its motion to dismiss argument.
3
We reject Doss’s suggestion that DCS waived its ability to file a motion to dismiss.

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 20 N.E.3d at 151. The trial court, here, did not conduct an evidentiary hearing

and ruled on DCS’s motion based on a paper record; thus, we review de novo

the trial court’s grant of DCS’s motion to dismiss. See id.

[19] Judicial review of an agency decision is governed by AOPA, see I.C. § 4-21.5-5-

1 et seq., which provides the “exclusive means for judicial review of an agency

action.” I.C. § 4-21.5-5-1. An aggrieved petitioner must file a petition for

judicial review within thirty days of service of the final agency action. See I.C. §

4-21.5-5-5. In order for a petitioner to receive consideration of his petition for

judicial review, he must comply with the agency record filing requirements of

Section 13 of AOPA, INDIANA CODE § 4-21.5-5-13. See TOPS, 20 N.E.3d at

150, 155; Robertson, 19 N.E.3d at 758, 762. Section 13 provides, in relevant

part, as follows:

(a) Within thirty (30) days after the filing of the petition, or within
further time allowed by the court or by other law, the petitioner
shall transmit to the court the original or a certified copy of the
agency record[4] for judicial review of the agency action . . .

(b) An extension of time in which to file the record shall be
granted by the court for good cause shown. Inability to obtain
the record from the responsible agency within the time permitted
by this section is good cause. 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.

4
INDIANA CODE §§ 4-21.5-5-13(a) and 4-21.5-3-33(b) set forth the required contents of the agency record.

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 I.C. § 4-21.5-5-13 (emphases added). “The purpose of AOPA section 13 is to

ensure that the review of agency action proceeds in an efficient and speedy

manner, and that the reviewing trial court has access to the record before

rendering its decision . . . .” TOPS, 20 N.E.3d at 155 (quoting Ind. Family &

Social Servs. Admin. v. Meyer, 927 N.E.2d 367, 370 (Ind. 2010)).

[20] Our Indiana Supreme Court has interpreted the AOPA agency record filing

requirements contained in INDIANA CODE § 4-21.5-5-13 and has set forth a

“bright-line” rule explaining that a “petitioner for [judicial] review cannot

receive consideration of its petition where the statutorily-defined agency record

has not been filed.” TOPS, 20 N.E.3d at 155 (internal footnote omitted).5

Thus, pursuant to Section 13 of AOPA, dismissal of a petition for judicial

review is “mandatory” where a petitioner fails to timely file the agency record.

See Allen Cty. Plan Comm’n v. Olde Canal Place Ass’n, 61 N.E.3d 1266, 1270 (Ind.

Ct. App. 2016) (citing TOPS, 20 N.E.3d 149; Robertson, 19 N.E.3d at 762-63).

The supreme court explained that this “bright-line approach best serves the

goals of accuracy, efficiency, and judicial economy.” TOPS, 20 N.E.3d at 155.

[21] In Robertson, a companion case to TOPS, our supreme court applied this bright-

line rule and reversed a trial court’s denial of a motion to dismiss a petition for

judicial review where the petitioner attached documents to its petition for

judicial review but failed to timely file a certified agency record. See Robertson,

5
The TOPS Court established this bright-line rule when addressing the issue of whether a petitioner who fails
to timely file the entire agency record can nevertheless obtain judicial review based on documents attached to
the petitioner’s petition for judicial review. Here, Doss does not contend that the trial court should review his
petition for judicial review without the certified agency record.

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 19 N.E.3d at 762-63. The Court explained that the petitioner’s failure to file the

agency record with the trial court precluded consideration of the petition for

judicial review. See id. at 763.

[22] Doss acknowledges that he failed to timely file the agency record but contends

that he should not be held responsible for such failure. Doss attempts to shift

the blame for his lack of filing on DCS, and he asserts that DCS set a “trap” for

him by not preparing the record within the required thirty days for filing and by

not explicitly telling him that the record would not be ready. Doss, however,

fails to acknowledge that the AOPA statute contains provisions for filing an

extension when—as were the circumstances here—a petitioner is unable to

timely file the agency record.

[23] Indeed, AOPA “acknowledges possible difficulties in preparing and submitting

the agency record, but places the burden on the petitioner to file or seek an

extension within the statutory period . . . .” Meyer, 927 N.E.2d at 371. See also

Mosco v. Ind. Dep’t of Child Servs., 916 N.E.2d 731, 735 (Ind. Ct. App. 2009)

(explaining that “the legislature anticipated the possibility that the agency

record would not always be readily accessible and therefore provided for the

failure of the agency to timely prepare the record by allowing the litigant to

request an extension of time to file the record”), reh’g denied, trans. denied.

Section 13 of AOPA provides that “[a]n extension of time in which to file the

record shall be granted by the court for good cause shown” and that a

petitioner’s “[i]nability to obtain the record from the responsible agency within

the time permitted by this section is good cause.” I.C. § 4-21.5-5-13(b).

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[24] When a petitioner is unable to file an agency record within the statutorily

required thirty-day period, the “onus” is on the petitioner to file a timely

extension. MicroVote Gen. Corp. v. Office of Sec’y of State, 890 N.E.2d 21, 28 (Ind.

Ct. App. 2008), trans. denied. “‘It is well settled that a reviewing court may

grant a request for an extension under [S]ection [13] of AOPA only if the

request is made during the initial thirty days following the filing of the petition

for review or within any previously granted extension.’” Meyer, 927 N.E.2d at

370-71 (quoting Wayne Cty. Prop. Tax Assessment Bd. of Appeals v. United Ancient

Order of Druids-Grove No. 29, 847 N.E.2d 924, 927 (Ind. 2006)). Our supreme

court has explained that Section 13 of the AOPA “statute is clear” and that the

“statute places on the petitioner the responsibility to file the agency record

timely” and “does not excuse untimely filing or allow nunc pro tunc extensions.”

Meyer, 927 N.E.2d at 370.

[25] Thus, we reject Doss’s argument that he should be excused from the

requirement to timely file the agency record. We also reject his suggestion that

DCS laid a trap for him. As explained by the trial court in its order dismissing

Doss’s petition for judicial review, our Court has already rejected this

argument:

8. This trap argument was addressed in Mosco . . . . The Mosco
court recognized the danger of an agency being a party and also
the keeper of the record required to be filed by the opposing
party. The danger being that the agency could seek out
dismissals by intentionally holding back the production of the
record for the 30 day time frame. Citing Reedus v. Indiana Dept. of
Workforce Dev., 900 N.E.2d 481, 487-88, (Ind. Ct. App. 2009).

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 9. Despite this obvious potential for possible unprofessional
activity, the Mosco court nonetheless found that the filing
requirements of the AOPA are not a trap for litigants. The
legislature provided for the possibility that the record would not
be able to be filed in time, and provided the petitioner with the
ability to request an extension once it became clear that the
agency would be unable to produce the record to a petitioner in
the time limits so required. Mosco, 900 N.E.2d at 735.

(DCS’s App. Vol. 2 at 2-3).

[26] Here, Doss filed his petition for judicial review on December 21, 2015; thus,

pursuant to Section 13 of AOPA, he was required to file the agency record by

January 20, 2016. On January 13, 2016, DCS notified Doss that it had received

his request on January 12, and it explained the process for transcribing the

transcript and for later obtaining the transcript and agency record. On January

18—two days before the agency record was due to be filed—Doss notified DCS

of his choice of transcriptionist. At that time, however, Doss did not file an

extension of time to file the agency record. But, the “burden” or “onus” was on

Doss to file a timely extension. See Meyer, 927 N.E.2d at 371; MicroVote, 890

N.E.2d at 28.

[27] In summary, Doss failed to comply with requirements of INDIANA CODE § 4-

21.5-5-13 for timely transmitting the agency record. He neither transmitted the

agency record nor sought an extension to file it within thirty days of filing his

petition for judicial review. As a result of Doss’s failure to timely file either the

agency record or an extension, he was not entitled to consideration of his

petition for judicial review, and we affirm the trial court’s dismissal of Doss’s

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 petition. See, e.g., TOPS, 20 N.E.3d at 155; Robertson, 19 N.E.3d at 763; Meyer,

927 N.E.2d at 371; Mosco, 916 N.E.2d at 735; MicroVote, 890 N.E.2d at 28.

2. Subpoena

[28] Next, we turn to Doss’s argument that the trial court erred by granting DCS’s

motion to quash his subpoena.

[29] Indiana Trial Rule 45(B) provides that the trial court may quash a subpoena if it

is “unreasonable and oppressive[.]” We will reverse a trial court’s decision to

quash a subpoena only where the trial court abuses its discretion. Strodtman v.

Integrity Builders, Inc., 668 N.E.2d 279, 285 (Ind. Ct. App. 1996), on reh'g, trans.

denied.

[30] Here, Doss sought to have a DCS employee produce requested documents and

provide testimony to explain why DCS did not get the certified agency record

to him by January 20. Specifically, he sought to have DCS produce the

following: “Certified copies of any and all communications, electronic or

written, with any and all court reporters, the [sic] Doss’s counsel, or any other

third parties.” (Doss’s App. Vol. 2 at 36). DCS filed a motion to quash Doss’s

subpoena pursuant to Trial Rule 45(B), arguing, in part, that the subpoena was

“unreasonable and oppressive” and not relevant to the motion to dismiss or to

the issue of whether Doss had complied with statutory mandates of AOPA.

(Doss’s App. Vol. 2 at 32). When the trial court granted DCS’s motion to

dismiss, it also granted DCS’s motion to quash Doss’s subpoena.

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[31] On appeal, Doss argues that the trial court’s grant of the motion to quash was

erroneous because the material he sought in his subpoena would have provided

information as to why DCS did not comply with his request to supply him with

the agency record within thirty days. As he did in his prior argument, he seeks

to place blame on DCS for his failure to file the agency record within the

required statutory period. Given our supreme court’s established “bright-line”

rule for filing the agency record or an extension, this argument is of no moment

and his requested documents in the subpoena were not reasonable. Because

Doss has not shown that the trial court abused its discretion, we affirm the trial

court’s ruling that granted DCS’s motion to quash the subpoena. See, e.g.,

Strodtman, 668 N.E.2d at 285 (affirming a trial court’s grant of a motion to

quash a subpoena duces tecum).

[32] Affirmed.

May, J., and Brown, J., concur.

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