Owner, director of compliance at Noblesville compounding pharmacy face federal drug charges

Case Number: 49A05-1711-PL-2697

Judge: Cale J. Bradford

Court: COURT OF APPEALS OF INDIANA

Plaintiff's Attorney: Curtis T. Hill, Jr.
Attorney General of Indiana
Evan Matthew Comer
Deputy Attorney General

Defendant's Attorney: David F. McNamar

Description: On July 5, 2017, the State of Indiana petitioned the Board for summary
suspension of Elmer, alleging that he was “a clear and immediate danger to the
public health and safety if allowed to operate as a R.Ph. in Indiana.”
Appellant’s App. Vol. II p. 91. A federal grand jury had indicted Elmer for
violations of federal drug laws by prior to the filing of this petition. On August
9, 2017, following a hearing, the Board suspended Elmer’s pharmacy license for
ninety days (“the First Suspension”). On September 6, 2017, Elmer petitioned
for judicial review and moved for a stay of the First Suspension. On September
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-PL-2697 | April 10, 2018 Page 3 of 5

19, 2017, the Board moved to dismiss Elmer’s petition, and the trial court
dismissed the case on October 4, 2017.
[3] Meanwhile, on October 2, 2017, the Board held a second hearing, after which it
suspended Elmer’s pharmacist license for another ninety days (“the Second
Suspension”). On October 10, 2017, Elmer filed an amended petition for
judicial review and a motion for change of judge. On October 19, 2017, the
Board filed a notice reserving all affirmative defenses in response to Elmer’s
amended pleading and moved to dismiss Elmer’s amended petition. The trial
court granted the Board’s motion to dismiss Elmer’s amended petition on
October 24, 2017.
Discussion and Decision
[4] Elmer appeals from the trial court’s grant of the Board’s motion to dismiss his
amended petition for judicial review. We need not reach that claim, however,
as Elmer also contends that the trial court erred in not granting his motion for
change of judge, a contention with which the Board agrees. The parties
seemingly only differ on the effect of this: While Elmer would also have us
review the merits of his claims, the Board contends that all we should do is
remand for a change of judge. We agree with the Board.
[5] Indiana Rule of Trial Procedure 76 provides, in part, as follows:
(B) In civil actions, where a change may be taken from the judge, such change shall be granted upon the filing of an unverified application or motion without specifically stating the ground therefor by a party or his attorney.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-PL-2697 | April 10, 2018 Page 4 of 5

…. (C) In any action except criminal no change of judge or change of venue from the county shall be granted except within the time herein provided. Any such application for change of judge (or change of venue) shall be filed not later than ten [10] days after the issues are first closed on the merits. Except: (1) in those cases where no pleading or answer may be required to be filed by the defending party to close issues (or no responsive pleading is required under a statute), each party shall have thirty [30] days from the date the case is placed and entered on the chronological case summary of the court as having been filed[.] (First two sets of brackets in original).
[6] Although the parties disagree on some details, such as whether the provisions of
subsections (C) or (C)(1) of Trial Rule 76 apply, both agree that the motion for
change of judge was timely. Once the motion for change of judge was timely
filed, the trial court simply had no jurisdiction to dismiss the petition—or do
anything else, for that matter—except grant the motion for change of judge.
“When a party files a motion for a change of judge, the trial court is divested of
jurisdiction except to grant the change or act on emergency matters.” A.T. v.
G.T., 960 N.E.2d 878, 881 (Ind. Ct. App. 2012). Because neither party alleges
that there were any emergency matters present in this case, we reverse the
judgment of the trial court and remand with instructions to grant Elmer’s
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-PL-2697 | April 10, 2018 Page 5 of 5

motion for change of judge and to reinstate the amended petition for judicial
review.1

Outcome: The judgment of the trial court is reversed and we remand with instructions.

Plaintiff's Experts:

Defendant's Experts:

Comments: