Northern Indiana Public Service Company v. Ruth A. Cranor

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. Jul 30 2014, 9:48 am
ATTORNEYS FOR APPELLANT:
EDWARD P. GRIMMER
DANIEL A. GOHDES
Edward P. Grimmer, P.C.
Crown Point, Indiana
IN THE
COURT OF APPEALS OF INDIANA
NORTHERN INDIANA PUBLIC )
SERVICE COMPANY, )
)
Appellant-Plaintiff, )
)
vs. ) No. 45A04-1403-PL-117
)
RUTH A. CRANOR, )
)
Appellee-Defendant. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Sheila M. Moss, Judge
The Honorable Kathleen M. Belzeski, Magistrate
Cause No. 45D08-1111-PL-68
July 30, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Northern Indiana Public Service Company (“NIPSCO”) appeals the trial court’s
order reinstating the driving privileges of Ruth Cranor. NIPSCO raises three issues,
which we restate as:
1. Whether the trial court erred when it interpreted Indiana Code
Section 9-25-6-6.
2. Whether equity required denial of Cranor’s request for the
reinstatement of her driving privileges.
3. Whether the trial court erred when it found that Cranor had not
received actual notice that her first installment payment was due on
January 15, 2014, and reinstated her driving privileges despite her
nonpayment.
We affirm.
FACTS AND PROCEDURAL HISTORY
On January 30, 2011, Cranor, driving while intoxicated and using her cell phone,
crashed her vehicle into a NIPSCO utility pole causing $3,980.49 in damages to the pole.
NIPSCO sued Cranor and won a default judgment against her in the amount of $10,000.
On August 24, 2013, after Cranor had failed to make any payments on the judgment,
NIPSCO obtained the suspension of Cranor’s license with the Bureau of Motor Vehicles
(“BMV”) under Indiana Code Section 9-25-6-4.
Cranor moved the trial court to permit her to make installment payments on the
judgment and to reinstate her driving privileges under Indiana Code Section 9-25-6-6.
During a hearing in September 2013, Cranor, pro se, testified that “without a license,
[she] can only work the weekends” at her job at “the Picture People in the mall.” Tr. of
September Hearing at 4. And Cranor offered to pay $40 per month towards the
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judgment. NIPSCO argued that, under the statute, Cranor’s license “is to be suspended
until the judgment is satisfied or until there is a court-approved schedule of installments
that will pay that judgment.” Id. at 9. And NIPSCO argued that the statute requires
installment payments sufficient to pay off the entire judgment within seven years. The
trial court took the matter under advisement and, on December 18, the court issued an
order reinstating Cranor’s driving privileges contingent on her payment of $75 per month
towards the judgment.
On January 17, 2014, NIPSCO filed a motion to correct error and a motion to re-
suspend Cranor’s driving privileges because she had failed to make the first installment
payment on January 15. The trial court granted the motion to re-suspend Cranor’s
driving privileges. Cranor then moved the trial court to reinstate her driving privileges.
Following a hearing on February 11, the trial court found that it had mailed the December
18, 2013, order to the wrong address and that Cranor did not have actual notice that she
was required to make installment payments. Accordingly, over NIPSCO’s objection, on
February 19, 2014, the trial court reinstated Cranor’s driving privileges. This appeal
ensued.1
DISCUSSION AND DECISION
Issue One: Statutory Interpretation
Initially, we observe that Cranor has not filed an appellee’s brief. “When an
appellee fails to submit a brief in accordance with our rules, we need not undertake the
burden of developing an argument for the appellee.” McKinney v. McKinney, 820
1
NIPSCO appeals both the December 18, 2013, and February 19, 2014, orders.
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N.E.2d 682, 685 (Ind. Ct. App. 2005). Rather, we apply a less stringent standard of
review, and we may reverse the trial court if the appellant establishes prima facie error.
Id. “Prima facie” means at first sight, on first appearance, or on the face of it. Id. This
standard prevents two evils that would otherwise undermine the judicial process. Pala v.
Loubser, 943 N.E.2d 400, 407 (Ind. Ct. App. 2011), trans. denied. By requiring the
appellant to show some error, we ensure that the court, not the parties, decides the law.
Id. By allowing the appellant to prevail upon a showing of only prima facie error, we
avoid the improper burden of having to act as advocate for the absent appellee. Id.
NIPSCO first contends that the trial court misinterpreted Indiana Code Section 9-
25-6-4(c) when it reinstated Cranor’s driving privileges based upon an installment plan
that will not satisfy the judgment within seven years of the accident. This court recently
addressed the same argument brought by NIPSCO in another appeal, and we held as
follows:
The Appellees’ driving privileges were suspended pursuant to Indiana Code
Section 9-25-6-4(c)[] which provides, “The bureau[] shall suspend for a
period of not more than seven (7) years from the date of judgment the
driving privileges of a person upon receiving a verified report that the
person has failed for a period of ninety (90) days to satisfy a judgment.”
“Judgment” is defined as “a judgment in excess of two hundred dollars
($200) for bodily injury, death, or property damages arising out of the use
of a motor vehicle upon a public highway.” Ind. Code § 9-25-6-4(b).
Indiana Code Section 9-25-6-6, which pertains to the reinstatement
of driving privileges, provides:
(a) The bureau may not suspend the driving privileges of a
person and shall reinstate the driving privileges of a person
following nonpayment of a judgment whenever a judgment
debtor does the following:
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(1) Gives proof that the judgment debtor will
maintain financial responsibility in the future
for at least three (3) years following
reinstatement.
(2) Obtains an order from the trial court in
which the judgment was rendered permitting the
payment of the judgment in installments, unless
the payment of an installment is in default.
(b) A judgment debtor, upon five (5) days’ notice to the
judgment creditor, may apply to the trial court in which the
judgment was obtained for the privilege of paying the
judgment in installments. The court, in the court’s discretion
and without prejudice to other legal remedies the judgment
creditor may have, may order the payment of the judgment in
installments, fixing the amounts and times of payment of the
installments.
(c) Except as provided in subsection (d), if the judgment
debtor fails to pay an installment as permitted by the order of
the court, upon notice of the default the bureau shall suspend
the driving privileges of the judgment debtor. The bureau
may not take action for failure to make installment payments
for judgments entered at least seven (7) years after the date of
the accident. Suspended driving privileges may not be
reinstated until evidence of proof of future financial
responsibility is presented.
(d) Notwithstanding a default by the judgment debtor in the
payment of a judgment or the payment of an installment
under subsection (b), whenever the judgment creditor
consents in writing, in the form the bureau prescribes, that the
judgment debtor be allowed driving privileges and
registration, the driving privileges and registration may be
allowed by the bureau at the bureau’s discretion. The driving
privileges and registration may be renewed until the consent
is revoked in writing if the judgment debtor furnishes proof
under this article that the judgment debtor will maintain
financial responsibility in the future for at least three (3) years
following reinstatement.
NIPSCO first contends that, because driving privileges may not be
suspended for more than seven years pursuant to Indiana Code Section 9-
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25-6-4, “[a] practical reading of I.C. 9-25-6-6(a)(2), congruous with the
seven year statutory limitation placed on the suspension of driving
privileges, requires that the trial court’s reinstatement order be based upon
installments sufficient to pay the judgment no later than the seventh
anniversary of the judgment. . . .” Appellant’s Brief (Sloan) p. 10.
According to NIPSCO, Indiana Code Section 9-25-6-6(a)(2) requires the
installment payments to be calculated to result in the payment of the
judgment in full during the suspension period.
Indiana Code Section 9-25-6-6 is clear and unambiguous, and its
plain language does not include such a time limit on the installment
payments. A judgment debtor is only required to obtain an order from the
trial court “permitting the payment of the judgment in installments. . . .”
I.C. § 9-25-6-6(a)(2). Had the Legislature intended to impose a time limit
on the installment payments it could have done so. See McGee v. McGee,
998 N.E.2d 270, 271 (Ind. Ct. App. 2013) (“[I]t is as important to recognize
what a statute does not say as it is to recognize what it does say.”) If we
were to interpret the statute in the manner in which NIPSCO suggests, we
would be adding a requirement to the statute that is not there. We cannot
and will not do that. See id. at 272.
NIPSCO’s proposed reading of the statute also ignores the clear
language of Indiana Code Section 9-25-6-6(b), which provides in part, “The
court, in the court’s discretion and without prejudice to other legal remedies
the judgment creditor may have, may order the payment of the judgment in
installments, fixing the amounts and times of payment of the installments.”
This language clearly vests trial courts with broad discretion in crafting the
amounts and timing of the installment payments.
***
NIPSCO’s attempt to distinguish the “installment” language of
Indiana Code Section 9-25-6-6 from the “payment plan” language and
“income withholding order” requirement of Indiana Code Section 31-16-
12-11 is unavailing. Notwithstanding the different terms, a plain reading of
Indiana Code Section 9-25-6-6 clearly gives trial courts the ability to issue
an order “permitting the payment of the judgment in installments” and vests
the trial court with the discretion regarding “the amounts and times of
payment of the installments.” Accordingly, NIPSCO has not established
that the trial court erred as a matter of law when it permitted the Appellees
to make installment payments of $50.00 per month even if the plan would
not result in the payment of the judgment in full during the suspension
period.
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NIPSCO v. Sloan, 4 N.E.3d 760, 765-66 (Ind. Ct. App. 2014), trans. denied.
Likewise, here, we hold that the trial court did not err when it ordered Cranor to
make installment payments of $75 per month towards the $10,000 judgment.
Issue Two: Equity
NIPSCO next contends that reinstatement of Cranor’s driving privileges is
inequitable. NIPSCO made this same argument in Sloan, and we held as follows:
As a general proposition, a trial court has full discretion to
fashion equitable remedies that are complete and fair to all
parties involved. However, our courts generally will not
exercise equitable powers when an adequate remedy at law
exists. Equity has power, where necessary, to pierce rigid
statutory rules to prevent injustice. But where substantial
justice can be accomplished by following the law, and the
parties’ actions are clearly governed by rules of law, equity
follows the law.
Porter v. Bankers Trust Co. of California, N.A., 773 N.E.2d 901, 908 (Ind.
Ct. App. 2002) (citations omitted).
Here, the suspension and reinstatement of driving privileges is
governed by statute, which gives the trial court discretion to craft
installment payments and reinstate a judgment debtor’s driving privileges.
NIPSCO argues that denying the request for reinstatement of driving
privileges sends the message that “[u]ntil a victim is or will be fully
compensated, the victimizer is not to drive lawfully.” Appellant’s Br.
(Sloan) p. 23. This argument overlooks the concerns addressed by the trial
court at the hearings that the reinstatement of driving privileges generally
improves a judgment debtor’s ability pay a judgment or, at the very least,
incentivizes the judgment debtor to make the installment payments.
Because NIPSCO is more likely to get paid if the Appellees’ driving
privileges are reinstated, substantial justice is accomplished by following
the law. Thus, the trial court properly rejected NIPSCO’s equity
arguments.
4 N.E.3d at 767-68. Likewise, NIPSCO’s equity argument fails here.
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Issue Three: Violation of Installment Payment Order
Finally, NIPSCO contends that, because Cranor missed her first installment
payment on January 15, 2014, Indiana Code Section 9-25-6-6(a)(2) and (c) “requires the
reinstatement order be vacated, suspension of privileges re-instated, and bars any future
reinstatement on installments.” Appellant’s Br. at 34. NIPSCO maintains that, under
subsection (c), “suspension is ministerial, an act of the BMV. Nothing in the statute
give[s] the court discretion to waive a failure of installment, or create[s] a defense in
Cranor for her non-payment.” Id. We cannot agree.
Again, Indiana Code Section 9-25-6-6(a) and (c) provide:
(a) The bureau may not suspend the driving privileges of a
person and shall reinstate the driving privileges of a person
following nonpayment of a judgment whenever a judgment
debtor does the following:
(1) Gives proof that the judgment debtor will
maintain financial responsibility in the future
for at least three (3) years following
reinstatement.
(2) Obtains an order from the trial court in
which the judgment was rendered permitting the
payment of the judgment in installments, unless
the payment of an installment is in default.
***
(c) Except as provided in subsection (d), if the judgment
debtor fails to pay an installment as permitted by the order of
the court, upon notice of the default the bureau shall suspend
the driving privileges of the judgment debtor. The bureau
may not take action for failure to make installment payments
for judgments entered at least seven (7) years after the date of
the accident. Suspended driving privileges may not be
reinstated until evidence of proof of future financial
responsibility is presented.
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(Emphasis added).
During the February 11, 2014, hearing, the trial court acknowledged its “error” in
mailing the notice of reinstatement and order to make installment payments to Cranor “to
an old address,” when she had previously given the court her correct address. Tr. of
February Hearing at 3. Thus, the trial court found that Cranor did not have notice that
she was required to make an installment payment on January 15, 2014. But NIPSCO
pointed out that Cranor went to the BMV and got her driving privileges reinstated on
January 15, 2014, the date her first installment payment was due. And NIPSCO argued
that “[s]he had sufficient notice” and had “sufficient time . . . to check the court docket,
[be]cause she knew the court order [reinstating her driving privileges] would [also]
contain an installment plan.” Id. at 6.
The trial court rejected NIPSCO’s argument and reinstated Cranor’s driving
privileges, despite the nonpayment, because of the court’s error in mailing the notice to
the wrong address. The court found that Cranor “did not have knowledge [of the order to
make the installment payments] since the order came back and it was our error.” Id. at
11.
Again, in Sloan, we stated that “a plain reading of Indiana Code Section 9-25-6-6
clearly gives trial courts the ability to issue an order ‘permitting the payment of the
judgment in installments’ and vests the trial court with the discretion regarding ‘the
amounts and times of payment of the installments.’” 4 N.E.3d at 766 (emphasis added).
The evidence supports the trial court’s finding that Cranor did not have actual notice that
her first installment payment was due on January 15, 2014, and we will not reweigh the
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evidence on appeal. The trial court did not abuse its discretion when it reinstated
Cranor’s driving privileges despite the missed payment.
Affirmed.
VAIDIK, C.J., and BROWN, J., concur.
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