Everett Powell v. Indiana Real Estate Commission (mem. dec.) ( 2020 )

MEMORANDUM DECISION
ON REHEARING
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 30 2020, 9:18 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
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Everett Powell Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Everett Powell, June 30, 2020
Appellant-Petitioner, Court of Appeals Case No.
19A-MI-1568
v. Appeal from the Marion Superior
Court
Indiana Real Estate The Honorable Heather Welch,
Commission, Judge
Appellee-Respondent Trial Court Cause No.
49D01-1903-MI-9674
Baker, Judge.
Court of Appeals of Indiana | Mem. Dec. on Rehearing 19A-MI-1568 | June 30, 2020 Page 1 of 4
[1] Everett Powell has filed a petition for rehearing. We grant it for the limited
purpose of addressing his arguments that we were mistaken in several respects
in our decision. First, he argues that we mistakenly stated that he stole $5,000
from a client. As he must surely be aware, we were not wrong. See In re Powell,
76 N.E.3d 130, 132 (Ind. 2017) (noting that the hearing officer found that
during Powell’s suspension from the practice of law, he “misappropriated
$5,000 from another client”).
[2] Second, he argues that we mistakenly noted that he did not provide all details
about his attorney disciplinary proceedings in his real estate broker application,
contending that this is a disputed issue of fact that is improper for us to resolve.
He is wrong. It is undisputed that, in his broker application, he disclosed the
2011 disciplinary action but failed to disclose any information or court
documents regarding the petitions for reinstatement or the denials thereof.
[3] Third, he notes that we stated that the Disciplinary Commission sought to
withdraw the third reinstatement petition. In this case, he is correct that we
misspoke and should have said that Powell moved to withdraw that petition.
[4] Fourth, he states that we were incorrect that he failed to raise his equal
protection argument before the trial court. He directs our attention to his
petition for judicial review, which includes a lone sentence, unsupported by
citation to authority, that “[t]o selectively prosecute Petitioner is a violation of
his equal protection rights.” Appellant’s App. Vol. II p. 54. This is insufficient
to preserve the issue for appellate review.
Court of Appeals of Indiana | Mem. Dec. on Rehearing 19A-MI-1568 | June 30, 2020 Page 2 of 4
[5] Fifth, he notes that we found no support in the record for his contention that
the administrative law judge (ALJ) had quashed his request for production of
documents. He is correct that there is, indeed, an order in the record in that
regard.1 We note, briefly, that the ALJ quashed the discovery request for the
following reasons: (1) the request for copies of over ten years of real estate
broker and real estate managing broker applications was overly broad and
unduly burdensome; and (2) the request was made of a non-party, which is
governed by Trial Rule 34(C), and Powell did not comply with the
requirements of that rule. Appellee’s App. Vol. III p. 242-43. The ALJ’s order
noted that the quashing of the document request did “not mean that with a
proper request, [Powell] may not be entitled to production of certain documents
nor does it limit his ability to seek access to public records[.]” Id. at 243(emphasis added). Powell did not establish a likelihood of success on the merits
with his argument that this order was improper. Therefore, while we
acknowledge the error in our decision with respect to this order, the result does
not change.
[6] Sixth, Powell argues that we should have framed our decision in terms of a
grant of summary judgment rather than the denial of his petition for a
preliminary injunction. We confess our confusion, as the proceedings below
1
In Powell’s briefs, his only citation to the record in support of this argument was to his own pleadings.
Appellant’s Br. p. 36; Reply Br. p. 19.
Court of Appeals of Indiana | Mem. Dec. on Rehearing 19A-MI-1568 | June 30, 2020 Page 3 of 4
were not summary judgment proceedings.2 We decline to amend our decision
in this regard.
[7] Aside from what we have addressed herein, we deny Powell’s petition for
rehearing.
Bradford, C.J., and Pyle, J., concur.
2
We think, perhaps, that Powell has mistaken the summary suspension of his license for a summary
judgment.
Court of Appeals of Indiana | Mem. Dec. on Rehearing 19A-MI-1568 | June 30, 2020 Page 4 of 4