Northen Indiana Public Service Company v. Edward A. Sloan, Dashawn L. Cole

FOR PUBLICATION
ATTORNEYS FOR APPELLANT:
Feb 17 2014, 7:16 am
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. 45A03-1307-SC-254
)
EDWARD A. SLOAN, )
DASHAWN L. COLE, )
)
Appellees-Defendants. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Sheila M. Moss, Judge
The Honorable Kathleen M. Belzeski, Magistrate
Cause No. 45D08-0710-SC-5732
February 17, 2014
OPINION - FOR PUBLICATION
BARNES, Judge
Case Summary
Northern Indiana Public Service Company (“NIPSCO”) appeals the trial court’s
orders reinstating the driving privileges of Edward Sloan and Dashawn Cole (collectively
“the Appellees”). We affirm.
Issues
NIPSCO raises three issues, which we restate as:
I. whether the trial court properly interpreted Indiana
Code Section 9-25-6-6;
II. whether equity required denial of the Appellees’
requests for the reinstatement of their driving
privileges; and
III. whether the trial court properly considered the Bureau
of Motor Vehicle’s procedures when ruling on this
case.
Facts
In 2009, NIPSCO filed a small claims complaint against Sloan alleging that he
damaged NIPSCO’s property in a car accident, causing $435.07 in damages. NIPSCO
was awarded treble damages in the amount of $1,305.21, attorney fees in the amount of
$1,500.00, and costs. On December 23, 2012, Sloan’s driving privileges were suspended
because of his failure to satisfy the judgment. On February 4, 2013, Sloan filed a letter
with the trial court requesting that an installment payment plan be worked out, and this
letter was forwarded to NIPSCO. On March 5, 2013, Sloan filed another letter requesting
a hearing on the matter. This letter was also forwarded to NIPSCO. A hearing was held
on May 14, 2013, at which NIPSCO objected to the reinstatement of Sloan’s driving
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privileges.1 On June 10, 2013, the trial court issued an order reinstating Sloan’s driving
privileges. The trial court ordered Sloan to comply with all of the provisions of Indiana
Code 9-25-6-6, including providing proof of financial responsibility for the next three
years to the Bureau of Motor Vehicles (“BMV”), the trial court, and NIPSCO, and to pay
$50 per month until the judgment was paid in full or until further order of the court.
Similarly, in 2007, NIPSCO and Cole entered into an agreed judgment in the
amount of $4,765.83 plus costs and, on January 13, 2009, Cole’s driving privileges were
suspended for failing to pay the judgment. On April 2, 2013, Cole requested a hearing on
the reinstatement of his driving privileges, and a hearing was held on April 9, 2013.
NIPSCO attended the hearing and objected to the reinstatement of Cole’s driving
privileges. On June 10, 2013, the trial court issued an order reinstating Cole’s driving
privileges. The trial court ordered Cole to comply with all of the provisions of Indiana
Code 9-25-6-6, including providing proof of financial responsibility for the next three
years to the BMV, the trial court, and NIPSCO, and to pay $50 per month until the
judgment was paid in full or until further order of the court. NIPSCO appealed the
reinstatement of the Appellees’ driving privileges, and the cases were consolidated on
NIPSCO’s motion.
1
A notice of completion of the transcript was filed under each appellate cause number before the cases
were consolidated. However, only one volume of transcript relating to Cole’s hearing was transmitted to
this court. Because NIPSCO included a transcript of Sloan’s hearing in its appendix, we were able to
review the transcripts of both hearings.
3
Analysis
As an initial matter, neither Sloan nor Cole has filed an appellee’s brief. Under
these circumstances, we do not undertake to develop the Appellees’ arguments. Morton
v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008). Instead, we may reverse upon NIPSCO’s
prima facie showing of reversible error. See id. In this context, prima facie error is
defined as, “‘at first sight, on first appearance, or on the face it.’” Id. (citation omitted).
I. Statutory Interpretation
NIPSCO argues that the reinstatement of the Appellees’ driving privileges was not
statutorily permitted. Statutory interpretation is a question of law, which is reviewed de
novo. Mertz v. Mertz, 971 N.E.2d 189, 195 (Ind. Ct. App. 2012), trans. denied. We first
determine whether the language of the statute is clear and unambiguous. Id. “If it is, we
will not apply any rules of construction other than to require that words and phrases be
given their plain, ordinary, and usual meanings.” Id. If a statute is susceptible to more
than one interpretation, it is deemed ambiguous and open to judicial construction, and we
will attempt to determine and give effect to the intent of the legislature. Id. We read the
provisions of a statute together so that no part is rendered meaningless if it can be
harmonized with the remainder of the statute and presume that a statute is to be applied in
a logical manner. Id.The Appellees’ driving privileges were suspended pursuant to Indiana Code
Section 9-25-6-4(c) (2013),2 which provides, “The bureau[3] shall suspend for a period of
2
Effective July 1, 2013, Indiana Code Section 9-25-6-4 was amended pursuant to P.L. 59-2013. The
amendment was not substantive.
4
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) (2013).
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:
(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
3
“Bureau” refers to the BMV. See Ind. Code § 9-13-2-16.
5
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 9-25-6-4, “[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
6
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.
This holding is consistent with Mertz. In that case, we addressed a similar
argument regarding Indiana Code Section 31-16-12-11, which permits a trial court to stay
an order suspending the driving privileges of a delinquent child support payor if “an
income withholding order . . . is implemented and a payment plan to pay the arrearage is
established.” In Mertz, the trial court reinstated the father’s driving privileges upon his
plan to pay one-half of his income toward child support, education expenses, and his
substantial arrearage. Mertz, 971 N.E.2d at 195. On appeal, the mother argued that
“only a plan that is reasonably calculated to remedy the arrearage in full should be
considered sufficient to lift the sanction.” Id. We rejected the mother’s argument and
held that Indiana Code Section 31-16-12-11 is clear and unambiguous and does not
impose any constraints upon the plan. Id. at 195-96. We concluded, “the sufficiency of a
7
plan offered by an obligor is best determined by a trial court, which is well-versed in the
specific facts of a case.” Id. at 196.
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.
NIPSCO also argues that the Appellees failed to meet other statutory
requirements, barring reinstatement of their driving privileges. First, NIPSCO asserts
that the Appellees were required to prove to the trial court at the reinstatement hearing
that they would maintain financial responsibility for at least three years. NIPSCO,
however, cites no legal authority that proof of financial responsibility was to be submitted
to the trial court at the hearing. In fact, Indiana Code Section 9-25-6-6(a) 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.
The statute simply does not require a judgment debtor to prove financial responsibility to
the trial court at the reinstatement hearing. Instead, it appears that the BMV is charged
with reinstating driving privileges when the debtor gives proof of financial responsibility
and obtains an order from the trial court permitting installment payments. Even if a
judgment debtor is required to give such proof to the trial court, in its orders reinstating
the Appellees’ driving privileges, the trial court required the Appellees to provide proof
of financial responsibility to the BMV, the trial court, and NIPSCO. Accordingly, the
trial court’s orders did not run afoul of Indiana Code Section 9-25-6-6(a).
NIPSCO also argues that the Appellees failed to file proposed plans at least five
days prior to the hearing. Indiana Code Section 9-25-6-6(b) provides in part, “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.” As an initial matter, because NIPSCO did not raise this issue to the trial
court, it cannot raise it for the first time on appeal. See Einhorn v. Johnson, 996 N.E.2d
823, 828 n.4 (Ind. Ct. App. 2013) (finding waiver where a party failed to make an
argument to the trial court).
9
Waiver notwithstanding, the statute simply does not require a detailed installment
plan be submitted by the judgment debtor prior to the hearing. The Appellees each filed
letters with the trial court indicating their desire to set up a payment plan, and these
letters were forwarded to NIPSCO’s attorney at least five days before the hearings.
NIPSCO had notice of the hearings and, in fact, attended the hearings and objected to the
reinstatement of the Appellees’ driving privileges. Thus, any error in the failure to
comply with the notice requirement was harmless and must be disregarded. See Ind.
Trial Rule 61 (“The court at every stage of the proceeding must disregard any error or
defect in the proceeding which does not affect the substantial rights of the parties.”).
Finally, NIPSCO contends that the reinstatement of Sloan’s driving privileges was
prohibited because Indiana Code Section 9-25-6-6(a)(2) allows a judgment debtor to
obtain an order “permitting the payment of the judgment in installments, unless the
payment of an installment is in default.” In 2010, a “payment agreement order” between
Sloan and NIPSCO was filed with the trial court in which Sloan agreed to pay $10.00 per
month until the judgment was paid in full. App. (Sloan) p. 64. Even if Sloan did not
make payments pursuant to the 2010 agreement, that agreement, although approved by
the trial court, was not issued by the trial court in connection with the petition for
reinstatement as contemplated by Indiana Code Section 9-25-6-6(b). In fact, the
agreement was filed with the trial court two and half years before Sloan’s license was
suspended. Thus, we are not convinced that Sloan was in default as contemplated under
Indiana Code Section 9-25-6-6(a)(2).
10
In fact, taking NIPSCO’s argument to its logical conclusion, by entering into the
2010 agreement, well before his license was even suspended, and defaulting on that
agreement, Sloan’s driving privileges could not be reinstated even with NIPSCO’s
consent because he would not have been in default of “the payment of an installment
under subsection (b).” I.C. § 9-25-6-6(d). We decline to adopt such a strained reading of
Indiana Code Section 9-25-6-6 because, although NIPSCO objected to the reinstatement
of Sloan’s driving privileges, other judgment creditors would likely view the
reinstatement of a judgment debtor’s driving privileges favorably because it increases the
likelihood of payment. Thus, NIPSCO has not made a prima facie showing that the trial
court was prohibited from issuing an order permitting the payment of the judgment in
installments.4
II. Equity
NIPSCO argues that the reinstatement of the Appellees’ driving privileges is
inequitable.
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.
4
Because of our holding, we need not address NIPSCO’s argument that the small claims rules did not
allow the trial court to ignore the plain language of Indiana Code Section 9-25-6-6.
11
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.
III. BMV Procedures
NIPSCO argues that the trial court improperly considered information outside the
record when, at Sloan’s hearing, the trial court indicated it had contacted the BMV to
determine how proof of financial responsibility is verified. At the hearing, NIPSCO
asserted that the issue of proving financial responsibility was not moot regardless of
BMV procedures and that Sloan had not met his burden of proving financial
responsibility. NIPSCO, however, did not object to the trial court contacting the BMV.
Thus, this issue is waived. See Einhorn, 996 N.E.2d at 828 n.4.
12
Waiver notwithstanding, NIPSCO loses the argument. Although NIPSCO asserts
that the trial court shifted its role as a neutral arbiter to an investigative fact finder,
pursuant to Indiana Code Section 9-25-6-6(a)(1), it is the BMV who is responsible for
reinstating driving privileges after the judgment debtor gives proof of responsibility, not
the trial court. Moreover, the trial court’s orders required the Appellees to provide proof
of responsibility to the BMV, the trial court, and NIPSCO, avoiding the possibility that
the Appellees would fail to provide the necessary proof of financial responsibility. Thus,
it is difficult see what, if any harm, came from the trial court contacting the BMV
regarding its procedures.
Conclusion
NIPSCO has not made a prima facie showing that the trial court erred in its
interpretation of Indiana Code Section 9-25-6-6 or that equity requires the continued
suspension of the Appellees’ driving privileges. NIPSCO waived its argument regarding
the trial court’s contacting the BMV by failing to object to that procedure during the
hearing. We affirm.
Affirmed.
ROBB, J., and BROWN, J., concur.
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