Everett Powell v. Indiana Real Estate Commission

2020 | Cited 0 times | Indiana Court of Appeals | May 8, 2020


Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE Everett Powell Indianapolis, Indiana ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana


Everett Powell, Appellant-Petitioner,


Indiana Real Estate Commission, Appellee-Respondent May 8, 2020 Court of Appeals Case No. 19A-MI-1568 Appeal from the Marion Superior Court The Honorable Heather Welch, Judge Trial Court Cause No. 49D01-1903-MI-9674

Baker, Judge. [1] Everett Powell was an attorney who had faced professional discipline before he

applied for a real estate license in 2015. He provided the Indiana Real Estate

Commission (IREC) with some, but not all, details about the attorney

disciplinary proceedings, and IREC agreed to provide him with a real estate

license. When Powell was disbarred in 2017, IREC learned the extent of the

allegations against him and instituted disciplinary proceedings. Ultimately,

IREC ordered that real estate license be suspended indefinitely and

that he may not seek reinstatement for at least eighteen months. Powell sought

suspension of his real estate license pending the judicial review process. The

trial court denied the motion for a preliminary injunction and Powell now

appeals. We affirm and remand for further proceedings.


[2] On September 29, 2011, our Supreme Court suspended Powell from the

practice of law for 120 days without automatic reinstatement after he collected

an unreasonable and exploitative fee from a vulnerable client. In 2012, 2013,

and 2014, respectively, Powell filed petitions for reinstatement of his attorney

license. Our Supreme Court denied the first two petitions for similar reasons:

forging signatures, filing false affidavits, asking a former client to commit

perjury, and converting client funds for his own use. The Disciplinary

Commission moved to withdraw the third petition, which our Supreme Court

granted. [3] On February 17, 2015, Powell filed an application for a real estate broker

license. The application required him to disclose if he had ever received a

complaint and/or disciplinary action regarding a professional license; he was

also required to details . . . . Court documents should be included, if applicable. App. Vol. II p. 59. Powell stated that he had, and attached a signed statement

explaining the 2011 disciplinary action and the opinion imposing the law

license discipline. He did not, however, include any information or court

documents regarding the petitions for reinstatement or the denials thereof. On

March 4, 2015, Powell appeared before IREC and answered questions about

the 2011 disciplinary action, again refraining from mentioning what had

happened in the ensuing years. Following the hearing, IREC issued Powell a

real estate broker license.

[4] On April 27, 2015, the Attorney Disciplinary Commission filed a new

complaint against Powell, alleging that he, among other things, practiced law

while suspended, forged signatures of clients and an attorney, filed a false

affidavit with our Supreme Court, stole $5,000 from a client, and asked his

former client to sign a false affidavit stating that he had paid her restitution of

$15,000 when he had not actually done so. On June 14, 2017, Powell was

disbarred. In re Powell, 76 N.E.3d 130 (Ind. 2017). [5] On February 27, 2018, the State filed a petition with IREC seeking the

law license discipline. 1

On November 14, 2018, a three-member administrative law judge (ALJ) panel

held an administrative hearing. On December 5, 2018, the ALJ Panel issued an

, without the

right to petition for reinstatement for at least eighteen months. Powell objected

to the ALJ Pan

[6] On March 8, 2019, Powell filed an emergency petition for judicial review and

the petition; the trial court granted the motion to dismiss s

order was preliminary and, in the meantime, IREC had initiated final

proceedings on the merits. On

February 11, 2019, this Court

administrative proceedings . . . may be concluded and all administrative

Powell v. Ind. , No. 19A-MI-1 (Feb. 11,

2019 Order). The dismissal was without prejudice and this Court noted that if

by timely filing a petition in the trial court.

1 proceedings. Powell sought judicial review of that temporary suspension and the trial court granted Powe [7] On March 26, 2019, IREC issued its final agency order. It adopted the ALJ

recommendation, finding that (1) Powell was disbarred, in part, for

fraudulent or deceptive behavior; and (2) Powell behaved fraudulently or

deceptively in the process of applying for the real estate license. IREC imposed

the sanction recommended by the ALJ Panel.

[8] On April 3, 2019, Powell filed a new emergency petition for judicial review and

May 29, 2019. It issued two orders on June 10, 2019: in one, it denied the

motion for a temporary restraining order and preliminary injunction; and in the

He now

appeals both orders. 2

2 dministrative Orders and Procedures Act is not an order granting injunctive relief that is immediately appealable as of right. State v. Trueblood, 767 N.E.2d 1011, 1013-14 (Ind. Ct. App. 2002). The same must necessarily be true for the denial order. In such situations, the would-be appellant must successfully navigate the certification-and-acceptance procedure outlined in Indiana Appellate Rule 14(B). Here, Powell failed to do so. As such, we do not have

But Appellate Rule 14(A) specifically notes that an order refusing to grant a preliminary injunction is appealable preliminary injunction is essentially identical to the denial of the stay. See id. at 1013 But we are unable to ignore the plain language of

Appellate Rule 14(A). Therefore, we are compelled to c preliminary injunction. Discussion and Decision

[9] Powell makes a number of arguments on appeal, but what we are squarely

request for a preliminary junction. The grant or denial of a preliminary

injunction is withi Reilly v. Daly, 666 N.E.2d

439, 443 (Ind. Ct. App. 1996). In conducting our review, we will consider the

evidence in the light most favorable to the judgment and will construe the

findings together liberally in favor of the judgment. Barlow v. Sipes, 744 N.E.2d

1, 5 (Ind. Ct. App. 2001).

[10] The party seeking injunctive relief is required to show, by a preponderance of

the evidence, that the facts and circumstances entitle him to injunctive relief.

Id. There are four factors to consider when weighing a preliminary injunction:

1) whether the pla causing irreparable harm pending the resolution of the

substantive action if the injunction does not issue; 2) whether the plaintiff has demonstrated at least a reasonable likelihood of success at trial by establishing a prima facie case; 3) whether the threatened injury to the plaintiff outweighs the threatened harm the grant of the injunction may inflict on the defendant; and 4) whether, by the grant of the preliminary injunction, the public interest would be disserved.

Id. Injunctive relief should only be granted in the rare instances in which the

Id. Adequate Remedy at Law

[11] In his motion seeking an injunction, Powell argued that an equitable remedy

was warranted for the following reasons:

Powell the agenc Vol. IV p. 170.

individuals that are in a business relationship with [Powell]. Trade

mpetition and will cause 3 Id. at 171. Id.

His clients will not wait for his license to be reinstated and will find other brokers. His name, reputation, and good will are irreparably harmed. 4 to replace the income and goodwill [Powell] will lose from the


because an award of post- Barlow, 744 N.E.2d at 6. 3

independent economic value, (3) is not generally known, or readily ascertainable by proper means by other

persons who can obtain economic value from its disclosure or use, and (4) the subject of efforts reasonable U.S. Land Servs., Inc. v. U.S. Surveyor, Inc., 826 N.E.2d 49, 63 (Ind. Ct. App. 2005). Powell has not even attempted to make this required showing be revealed to his competitors. Consequently, this argument is waived. 4 There is no evidence in the record showing that Powell had a good reputation, especially considering that he is a disbarred attorney, which is a matter of public record. Thompson v. Med. Licensing Bd., 180 Ind. App. 333, 342, 389 N.E.2d 43, 49 (Ind.

Ct. App. 1979). More specifically, publicity generated by revocation of a

license is not deemed to be the type of irreparable injury contemplated, and

injunctions have been almost uniformly denied to professionals seeking to stop

license revocation hearings because of damage to their reputa Id.

[12] None of the harms listed by Powell, therefore, are the kind of irreparable injury

that would support a request for equitable relief. All that we are left with is his

argument that IREC is immune from liability and, therefore, he could not be

compensated as a remedy at law. Powell directs our attention to Orndorff v.

Bureau of Motor Vehicles, 982 N.E.2d 312 (Ind. Ct. App. 2012), which he argues

stands for the proposition that the other party prevailed at trial, the government would compensate that party

atement of

the holding of that case. In Orndorff, in considering whether the plaintiff, whose

ten years, had an adequate remedy at

law, this Court observed that Orndorff prevails at trial, monetary damages will compensate her if her family

loses its housing or if the children are unable to attend their new school due to

Orndorff, 982 N.E.2d at 325. In other words, this Court

adequately addressed with monetary compensation. [13] directed our attention to any caselaw requiring that the government show how a

monetary damages award would be paid. Instead, as the plaintiff, he is required

to prove that he has sustained something beyond mere economic injury. He

has not carried that burden. As such, this factor weighs in favor of the State.

Likelihood of Success at Trial

[14] To meet his burden on this factor, Powell is not required to show that he is

entitled to relief as a matter of law, but only that success on the merits is

probable. Bowling v. Nicholson, 51 N.E.3d 439, 444 (Ind. Ct. App. 2016). In

other words, Powell must show that it is probable that will be


[15] the ag , 836 N.E.2d 311, 313

(Ind. Ct. App. 2005). The reviewing court will not reweigh the evidence and

must review the record in the light most favorable to the administrative

proceedings. Id. :

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to a constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; or (5) unsupported by substantial evidence. Id. 5

[16] In its final order, IREC reached two relevant conclusions:

Powell violated Indiana Code section 25-1-11-5(a)(7) because he was permanently disbarred on grounds similar to (1) Indiana Code section 25- 1-11-5(a)(1)(A), which authorizes sanctions against a practitioner who engages in fraud or material deception to obtain a license to practice; and/or (2) Indiana Code section 25-1-11-5(a)(1)(B), which authorizes sanctions against a practitioner who engages in fraud in the course of providing professional services. Powell violated Indiana Code section 25-1-11-5(a)(1)(A) because he engaged in fraud to obtain a real estate license. This conclusion was disciplinary actions when he first applied for his real estate license in


What we must determine, therefore, is whether the trial court erred by finding

that Powell did not show that he was likely to succeed on the merits of his

order is invalid.

[17] consideration of the facts and lacks any basis that may lead a reasonable person

to make the decision made by the administrative agency. Id. at 313.

5 Powell argues that the trial court erred by deferring to IREC on pure questions of law. Initially, we note that we are not convinced that the trial court did, indeed, defer to the agency to an impermissible degree. But in any event, we need not address this issue as we are firmly convinced that the trial court would have reached the same (correct) result even if it had not purportedly deferred to IREC on questions of law. [18] Indiana Code section 25-1-11-5(a)(7) provides that a practitioner here,

Powell is subject to disciplinary sanctions if he has had disciplinary action

taken against him on grounds similar to those under this chapter. And in that

same section, the legislature has decreed that a practitioner may be subject to

sanctions if he material deception in the course of

I.C. § 25-1-11-5(a)(1)(A), -5(a)(1)(B).

Here, it is undisputed that Powell was disciplined by the Attorney Disciplinary

Commission and ultimately disbarred for, among other things, forging

signatures and filing a false affidavit with our Supreme Court, in an attempt to

identical to, the conduct set forth in these statutes.

[19] Moreover, when Powell first applied for his real estate license in 2015, while he

disclosed that he had previously faced disciplinary sanctions as an attorney in

2011, he wholly failed to disclose the events that had occurred since that time.

Specifically, he failed to disclose that in the years following 2011, he had

tried more than once to get his attorney license reinstated. In the process,

he forged signatures, filed a false affidavit with our Supreme Court, stole $5,000

from a client, and asked a client to sign a false affidavit stating that he had paid

her restitution of $15,000 when he had not, in fact, done so. He also failed to

disclose that our Supreme Court had denied his petitions for reinstatement.

Because the denials of his petitions, as well as the reasons for doing so, are

clearly and directly related to his attorney discipline, a reasonable person could easily conclude that these failures to disclose amounted to Powell engaging in

fraud or deception in order to obtain his real estate license.

[20] We have little difficulty conclu was arbitrary, capricious, or contrary to law. Likewise, to the extent that

Powell makes a broad and unsupported statement that we cannot agree given

the undisputed evidence in the record.

[21] Powell directs our attention to Indiana Code section 25-1-11-16, which requires

Here, Powell submitted documentation of other cases that,

according to Powell, show that the sanctions ordered in this case are a

But in the three 6 other cases

considered by IREC, none of the individuals had failed to disclose misconduct

6 Powell submitted documentation of three cases to the ALJs before the Panel issued its decision. After the Panel issued its decision, Powell submitted documentation of an additional twenty-eight cases. But decision to review this additional evidence, which was not provided to the ALJs in a timely fashion, was discretionary. Ind. Code § 4-21.5-3-28(e)(3) (providing that may . Nothing in this record suggests that IREC erred in this regard. in their real estate license applications. Consequently, we cannot find that the

sanctions imposed on Powell fall under Indiana Code section 25-1- 11-16. 7 , 8

[22] Next, Powell contends that the doctrine of laches would result in the

. Laches requires (1) inexcusable delay in

asserting a known right; (2) an implied waiver arising from knowing

acquiescence in existing conditions; and (3) a change in circumstances causing

prejudice to the adverse party. Orndorff, 982 N.E.2d at 320 (quoting SMDfund,

Inc. v. Fort Wayne-Allen Cty. Airport Auth., 831 N.E.2d 725, 729 (Ind. 2005)).

Powell has not established an inexcusable delay. IREC did not discover the full

The State filed a

petition to suspend his real estate license less than a year later. A seven-month

delay is insufficient for laches to apply. See Ind. Real Estate C Ackman,

766 N.E.2d 1269, 1274 (Ind. Ct. App. 2002) (laches did not apply where IREC

filed the complaint one year after discovering the violation). Consequently, the

7 based on the way it has dealt with other licensees. Powell has waived this argument because he failed to raise it before the trial court. Furthermore, Powell has not, and cannot, show that he has been intentionally treated differently from others similarly situated or that there is no rational basis for the difference in treatment. Chi. Studio Rental, , 940 F.3d 971, 979 (7th Cir. 2019). Therefore, he is not likely to succeed with this argument. 8 Powell seems to argue that IREC imposed a harsher sanction than that recommended by the ALJ Panel. He is mistaken. The ALJ Panel indefinitely suspended his license without a right to petition for reinstatement for at least eighteen months. IREC imposed precisely the same sanction. The fact that IREC found that Powell committed only two violations, as opposed to the three violations found by the ALJ Panel, is not relevant. [23] because the matter was decided in 2015 when IREC granted him a license.

Initially, we n and could not have been, determined in 2015. Powell did not have a real estate

license before that time, so IREC could not possibly have considered

suspending it. Furthermore, in 2015, IREC did not know that Powell had been

dishonest in his application. Under these circumstances, res judicata would

offer no relief to Powell. 9

[24] Next, Powell argues that IREC did not have jurisdiction over his case because

after IREC suspended his license for ninety days after the disciplinary

proceeding was begun, the trial court stayed the suspension pending the

administrative proceedings. But the act of issuing a stay did not prevent IREC

from considering the case and issuing a final order; instead, it merely stayed the

suspension pending that final review. Indeed, the stay order itself specifically

not be overturned on this basis.

[25] Finally, Powell argues that he would succeed on the merits because IREC failed

to abide by two required procedures. First, he argues that he was entitled to a

9 constitutions. That clause relates to criminal punishment. It also relates to laws Powell is not challenging a

law; he is challenging an agency decision. Therefore, he would not be entitled to relief on this basis. change of ALJ. Second, he insists that he made a discovery request that should

have been granted.

[26] With respect to his requested change of ALJ, while a party to an administrative

proceeding may file a petition for disqualification of a judge, the party must

offer facts showing that the ALJ is biased. I.C. § 4-21.5-3-9(d). Powell asserts

that the ALJ Panel had already formed an opinion about him because it had

considered his case in the proceeding leading to his first, dismissed, appeal. But

that is pure conjecture and falls far short of a showing that the ALJs were biased

against him. See Liteky v. United States, 510 U.S. 540, 555 (1994) (holding that

an adjudicator is not biased simply because of knowledge gained in another

proceeding involving the same individual).

[27] With respect to his supposed discovery request, But there is simply nothing in the record showing that Powell made a discovery

request or that the ALJ Panel denied it. Therefore, we cannot find that he is

likely to succeed on the merits based on this argument.

[28] In sum, we find that the trial court did not err by concluding that Powell failed

to establish a likelihood that he will succeed on the merits. This factor weighs

in favor of the State.

Threatened Injury to Plaintiff Versus Threatened Harm of Injunction

[29] The threatened injury to Powell is undeniable his real estate license is

suspended indefinitely, and, for at least eighteen months, he will have to find another source of income. But if an injunction were issued preventing order fraud, and theft. This factor does not favor either party.

Public Interest

[30] The public interest strongly weighs in favor of the State. Powell has a history of

dishonest, fraudulent behavior and of stealing from clients. Given the

seriousness of the situation and the vulnerability of the public, it is clearly in the

public interest that his real estate license remain suspended during the judicial

review proceedings.

[31] In sum, three of the four preliminary injunction factors weigh in favor of the

State, and the fourth is evenly balanced. Under these circumstances, we find


[32] The judgment of the trial court is affirmed and remanded for further


Bradford, C.J., and Pyle, J., concur.

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