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Indiana Bureau of Motor Vehicles v. McClung

Court of Appeals of Indiana

December 12, 2019

Indiana Bureau of Motor Vehicles and the Marion County Prosecutor's Office, Appellants-Respondents,
Dezie McClung, Appellee-Petitioner.

          Appeal from the Marion Circuit Court Trial Court Cause No. 49C01-1803-MI-10290 The Honorable Mark A. Jones, Judge, The Honorable Sheryl L. Lynch, Judge

          Attorneys for Appellants Curtis T. Hill, Jr. Attorney General of Indiana Aaron T. Craft Section Chief, Civil Appeals Josiah J. Swinney David E. Corey Deputy Attorneys General Indianapolis, Indiana

          Attorney for Appellee John L. Tompkins Indianapolis, Indiana

          Mathias, Judge.

         [¶1] In November 2018, the Marion Circuit Court granted a petition for specialized driving privileges to Dezie McClung ("McClung"), a Marion County resident whose driving privileges had been suspended. Shortly thereafter, the Indiana Attorney General, on behalf of the Indiana Bureau of Motor Vehicles ("BMV"), filed a motion to correct error arguing that the trial court's order was contrary to Indiana Code section 9-30-16, which imposes a durational limit on specialized driving privileges when such privileges are granted. The trial court denied the BMV's motion to correct error. This appeal by the BMV presents one issue for our review: whether the trial court acted contrary to law when it denied the BMV's motion to correct error and permitted specialized driving privileges to be granted for indefinite periods. Because we find that the trial court's order was contrary to applicable law, we reverse and remand.

         Facts and Procedural History

         [¶2] McClung was subject to three active driver's license suspensions at the time he petitioned for specialized driving privileges. The BMV imposed one suspension, in 2012, due to McClung being a habitual traffic violator ("HTV"). This ten-year, administrative suspension took effect on December 21, 2012, and expires in 2022. The two other suspensions are indefinite or "lifetime" suspensions that resulted from McClung's 2011 and 2012 Level 6 felony convictions for driving while suspended as an HTV.[1] See Ind. Code § 9-30-10-16 (2015). For the purpose of determining the availability of specialized driving privileges under Indiana Code section 9-30-16-1, et seq., all three of McClung's suspensions are considered administrative suspensions, as opposed to being court-ordered suspensions.[2]

         [¶3] In March 2018, McClung filed a petition for specialized driving privileges in the Marion Circuit Court. McClung sought relief from the suspensions under Indiana Code section 9-30-16-4 ("Section 4"), which governs administrative suspensions of driving privileges. Appellant's App. pp. 24-25. After a hearing, the trial court stayed McClung's suspensions and granted specialized driving privileges as requested on November 5, 2018. Appellant's App. pp. 8-12. The trial court's order stated, in relevant part:

8. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that, any outstanding fines and/or reinstatement fees are waived, the Petition for Specialized Driving Privileges is GRANTED, the above-referenced suspension(s) is/are stayed, and Petitioner is granted SPECIALIZED DRIVING PRIVILEGES commencing on the date of this Order do not expire until further court order. The conditions and limitations of those Specialized Driving Privileges are as follows:
* * *
The Specialized Driving Privileges granted by this Order shall remain in effect until 11:59:59 P.M. on the day of, 20, <OR> further Court order. A Review Hearing is set in this Court on January 13, 2020, at 11:00 A.M., at which Petitioner is ordered to appear and present proof that the required insurance is still in effect and has not lapsed, and proof of attendance at A.A./N.A./counseling meetings, if that has been required by this Order.

Id. (Emphases in original.)

         [¶4] On November 26, 2018, the BMV, by the Attorney General, submitted a motion to correct error pursuant to Indiana Trial Rule 59.[3] Appellant's App. pp. 43-46. The BMV's motion asserted, in relevant part:

4. Under Indiana Code section 9-30-16-3(c), this Court is authorized to stay a petitioner's court-ordered suspensions and grant specialized driving privileges for "at least one hundred eighty (180) days" and "not more than two and one-half (2.5) years." These limitations also apply to administrative suspensions because Indiana Code section 9-30-16-4, which governs administrative suspensions, authorizes a petitioner to petition for specialized driving privileges "as described in section 3(b) through 3(d) of this chapter."
5. In its Order, this Court granted Petitioner specialized driving privileges that were to remain in effect until further court order. This indefinite time period exceeds the two and one-half year maximum allowed under Indiana law. I.C. section 9-30-16-3(c).
6. Therefore, this Court's Order is contrary to law and should be vacated or amended so that Petitioner's specialized driving privileges comply with Indiana Code section 9-30-16-3(c).

Appellant's App. pp. 43-44.

         [¶5] Shortly after the Attorney General's addition to the case, McClung filed a motion to strike appearance and filing, arguing in the alternative that the trial court's order granting specialized driving privileges was not in error. Appellant's App. pp. 49-50. The trial court ordered McClung to file a brief in response to the BMV's motion to correct error and stayed McClung's earlier motion to strike.[4] Appellant's App. pp. 51-52, 53. Meanwhile, the BMV filed a response in opposition to the motion to strike and filed a reply in support of its motion to correct error. Appellant's App. pp. 59-62, 63-82. Ultimately, on March 1, 2019, the trial court denied McClung's motion to strike the Attorney General's appearance and denied the BMV's motion to correct error. Appellant's App. pp. 13-22. The BMV now appeals the trial court's denial of its motion to correct error.

         BMV's Motion to Correct Error

         [¶6] We address initially whether the BMV waived for review the indefinite time period for which the trial court granted specialized driving privileges to McClung. When McClung's petition was before the trial court, a Marion County Deputy Prosecutor appeared on the BMV's behalf, in accordance with Indiana Code section 9-30-16-4(b). In its order denying the BMV's motion to correct error, the trial court noted that the "BMV, by its counsel, did not raise any objection to the granting of the petition, leaving it to the discretion of the Court."[5] Appellant's App. pp. 14-15. In the trial court's view, the absence of an objection from the prosecutor in response to its grant of specialized driving privileges for an indefinite duration meant that the issue was waived for review. The trial court stated:

It is well settled that if a party does not object at trial, any objection that was available to the party is waived. Such is the case here. BMV cannot stand idly by while its counsel takes one position at a trial or hearing or by written agreement, and then try to slide in later and take a contrary position. BMV has waived the objection that it asserts by way of its [motion to correct error.]

Appellant's App. p. 15.

         [¶7] On this basis, the trial court denied BMV's motion to correct error, though the trial court went on to address the motion, waiver notwithstanding, based on the repetitive nature of the BMV's claim. Id.

         [¶8] We cannot agree with this line of reasoning. The rule that the trial court cites applies to the effect of objections made, or not made, during trial. After a trial court has entered an order with which a party disagrees-as the BMV does here, to the trial court's order granting specialized driving privileges that exceed two and one-half years-the appropriate course of action was for the BMV to file a motion to correct error, which it did. After a trial court enters an order is not the time for an objection, and the absence of an objection here does not mean the BMV waived the issue for judicial review.

         Standard of Review

         [¶9] We typically review a trial court's ruling on a motion to correct error for an abuse of discretion. Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013). But when the resolution of a motion to correct error rests on an issue of statutory interpretation, as it does here, we review the trial court's ruling de novo. Id. In interpreting a statute, we first determine whether the legislature has spoken clearly and unambiguously on the point in question. Rheem Mfg. Co. v. Phelps Heating & Air Conditioning, Inc., 746 N.E.2d 941, 947 (Ind. 2001). When a statute is clear and unambiguous, we need not apply any rules of construction other than to require that words and phrases be taken in their plain, ordinary and usual sense. Poehlman v. Feferman, 717 N.E.2d 578, 581 (Ind. 1999). It is only when a statute is susceptible to more than one interpretation that we deem it ambiguous and open to judicial construction. Amoco Production Co. v. Laird, 622 N.E.2d 912, 915 (Ind. 1993).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[&para;10] In the face of an ambiguous statute, we resort to the well-established rules of statutory construction, the most important of which is to determine, give effect to, and implement the intent of the legislature. Crowel v. Marshall County Drainage Bd.,971 N.E.2d 638, 645 (Ind. 2012). To do so, we read the sections of a statute together so that no part is rendered meaningless if it can be harmonized with the rest of the statute; in other words, we read the statute as a whole. Indiana Dep&#39;t. of Public Welfare v. Payne,622 N.E.2d 461, 466 (Ind. 1993). We do not presume that the legislature intended for language used in a statute ...

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