                                                                 FILED
                                                             Jan 23 2017, 8:46 am

                                                                 CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court




ATTORNEYS FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                       J. Michael Woods
Attorney General of Indiana                               Stracci Criminal Defense
                                                          Merrillville, Indiana
Andrea E. Rahman
Deputy Attorney General
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Indiana Bureau of Motor                                   January 23, 2017
Vehicles, and Kent Abernathy,                             Court of Appeals Case No.
Commissioner of the Indiana                               45A03-1607-MI-1538
Bureau of Motor Vehicles,                                 Appeal from the Lake Circuit
Appellants-Respondents,                                   Court
                                                          The Honorable George Paras,
        v.                                                Judge
                                                          Trial Court Cause No.
Craig Watson,                                             45C01-1512-MI-325
Appellee-Petitioner.




Robb, Judge.




Court of Appeals of Indiana | Opinion 45A03-1607-MI-1538 | January 23, 2017           Page 1 of 14
                                 Case Summary and Issue
[1]   In 2015, the Indiana Bureau of Motor Vehicles (“BMV”) denied the renewal of

      Craig Watson’s chauffeur’s license. Following an unsuccessful administrative

      appeal, Watson petitioned for and the trial court granted him special driving

      privileges. BMV refused to issue Watson’s special driving privileges, and

      Watson subsequently filed a motion to compel the issuance of a valid

      chauffeur’s license, which the trial court granted. The Attorney General of

      Indiana then intervened on behalf of BMV and filed a motion to correct error

      alleging the trial court lacked personal jurisdiction to consider Watson’s motion

      to compel. The trial court denied BMV’s motion to correct error. BMV now

      appeals, raising one issue for our review, whether the trial court erred in

      denying its motion to correct error. Because Watson effectively petitioned the

      trial court for judicial review of an agency action without having served the

      Attorney General of Indiana, as required by the Indiana Administrative Orders

      and Procedures Act (“AOPA”), we conclude the trial court did not have

      personal jurisdiction and therefore could not enter an order directing BMV to

      issue Watson a chauffeur’s license. We therefore reverse the trial court’s denial

      of BMV’s motion to correct error and vacate its order directing BMV to issue

      Watson a chauffeur’s license.



                             Facts and Procedural History



      Court of Appeals of Indiana | Opinion 45A03-1607-MI-1538 | January 23, 2017   Page 2 of 14
[2]   Watson has worked in the construction industry for almost twenty-five years

      and his employment requires him to operate certain types of trucks that require

      a chauffeur’s license.


      In 2000, the State of Illinois suspended Watson’s driver’s license for failure to

      make required payments towards fines and costs. Although Watson stated he

      received notice from the Illinois Secretary of State that he was eligible for

      reinstatement, he elected to move to Indiana without fully resolving the issue

      with Illinois.


[3]   In 2001, BMV issued Watson a driver’s license. In 2005, BMV renewed

      Watson’s license which had been amended to a chauffeur’s license. Watson

      renewed his chauffeur’s license in 2009. In July of 2015, Watson again

      attempted to renew his chauffeur’s license; however, this time BMV refused to

      renew his license. BMV relied upon the Driver License Compact Act, to which

      the Indiana and Illinois are signatories, and informed Watson he must resolve

      his license suspension with Illinois before it would be able to renew his license.

      Watson administratively appealed the denial of his license renewal and, on

      December 21, 2015, BMV issued a final order finding Watson’s license renewal

      was “properly denied . . . due to the Illinois suspension.” Appellant’s Appendix

      at 66.


[4]   On December 28, 2015, Watson filed a Verified Petition for Special Driving

      Privileges. Following a hearing at which a Lake County deputy prosecutor

      appeared on behalf of BMV, the trial court granted Watson’s request for special


      Court of Appeals of Indiana | Opinion 45A03-1607-MI-1538 | January 23, 2017   Page 3 of 14
      driving privileges. However, on January 25, 2016, BMV sent a letter to the trial

      court stating it could not issue Watson special driving privileges because he still

      possessed a valid Indiana license and they could not issue specialized driving

      privileges on a suspended Illinois license. One month later, Watson responded

      by filing a Motion to Compel Issuance of Specialized Driving Privileges or to

      Issue a Valid Driver’s License Credential. Watson’s motion, in addition to

      requesting the trial court to compel BMV to issue special driving privileges,

      contested BMV’s interpretation of the Driver License Compact Act and

      requested the trial court order BMV to issue him a valid chauffeur’s license.

      The certificate of service indicates Watson served the motion on the

      Commissioner of the Bureau of Motor Vehicles and the Lake County

      Prosecuting Attorney’s Office.


[5]   Following a hearing on March 8, 2016,1 the trial court granted Watson’s

      Motion to Issue a Valid Driver’s License Credential and ordered BMV to issue

      Watson a valid chauffeur’s license. The trial court’s order states, “[Indiana

      Code section 9-28-1-3, Article 5, Section 2] applies to the issuance of a new

      driver’s license, not the renewal of an existing license . . . . [Watson’s]

      suspension in Illinois does not serve as a bar to issuance of a renewal




      1
        At the hearing, BMV was represented by a deputy prosecutor. The deputy prosecutor’s only participation
      in the hearing involved a colloquy that went as follows:
              [The State]:      Nothing from the State.
              The Court:        So . . ., you’re representing the BMV?
              [The State]:      I believe so.

      Transcript from March 8, 2016 Hearing at 7.

      Court of Appeals of Indiana | Opinion 45A03-1607-MI-1538 | January 23, 2017                   Page 4 of 14
      credential[.]” Appellant’s App. at 13. The trial court also found BMV was

      equitably estopped from refusing to issue a renewal of his chauffeur’s license.


[6]   On April 7, 2016, the Attorney General of Indiana filed a motion to intervene

      on behalf of BMV and a motion to correct error alleging the trial court lacked

      personal jurisdiction to order BMV to issue a chauffeur’s license. The motion

      to correct error contended Watson’s Motion to Issue a Valid Driver’s License

      Credential was, in effect, a petition for judicial review requiring service upon

      the Attorney General of Indiana. The trial court denied BMV’s motion to

      correct error. BMV now appeals.



                                 Discussion and Decision
[7]   BMV argues the trial court impermissibly engaged in judicial review of an

      agency decision. Specifically, it alleges “Watson’s motion to compel the

      issuance of a chauffeur’s license, and the trial court’s subsequent order,

      essentially converted Watson’s original action into a petition for judicial review

      [of an agency action].” Appellant’s Brief at 11 (internal citations omitted).

      BMV further argues because the trial court reviewed, at Watson’s request, an

      administrative action of a state agency, Watson was required to follow statutory

      procedures outlined in AOPA, including serving the Attorney General, which

      he failed to do; and because Watson failed to serve the Attorney General, BMV

      argues the trial court lacked personal jurisdiction to order it to issue a

      chauffeur’s license.



      Court of Appeals of Indiana | Opinion 45A03-1607-MI-1538 | January 23, 2017   Page 5 of 14
                                      I. Standard of Review
[8]   We generally review a trial court’s ruling on a motion to correct error for an

      abuse of discretion. Jocham v. Sutliff, 26 N.E.3d 82, 85 (Ind. Ct. App. 2015),

      trans. denied. An abuse of discretion occurs when the trial court’s decision is

      against the logic and effect of the facts and circumstances before the court or if

      the court has misinterpreted the law. In re Marriage of Dean, 787 N.E.2d 445,

      447 (Ind. Ct. App. 2003), trans. denied. However, where the issues raised in the

      motion are questions of law, the standard of review is de novo. City of

      Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct. App. 2010), trans. denied.

      Here, BMV’s motion to correct error raised questions regarding the trial court’s

      jurisdiction and authority to order BMV to grant Watson a chauffeur’s license.

      In response, Watson alleged that new statutory amendments removing certain

      BMV actions from judicial review under AOPA apply retroactively. As a trial

      court’s jurisdiction and the interpretation of a statute present questions of law,

      our standard of review is de novo. See Boyer v. Smith, 42 N.E.3d 505, 508 (Ind.

      2015); Johnson v. State, 36 N.E.3d 1130, 1133 (Ind. Ct. App. 2015), trans. denied.


                                         II. Judicial Review
[9]   In refusing to renew Watson’s chauffeur’s license, BMV relied upon the Driver

      License Compact Act which permits BMV to deny an applicant a license to

      drive if the applicant has held or is the holder of a license from another party

      state and the applicant’s license from that state either (1) “has been suspended

      by reason, in whole or in part, of a violation and if such suspension period has


      Court of Appeals of Indiana | Opinion 45A03-1607-MI-1538 | January 23, 2017   Page 6 of 14
       not terminated[,]” or (2) “has been revoked by reason, in whole or in part, of a

       violation and if such revocation has not terminated[.]” Ind. Code section 9-28-

       1-3, art. 5(1), (2). Following an unsuccessful administrative appeal, Watson

       petitioned for special driving privileges under Indiana Code section 9-30-16-4,

       which permits the trial court to grant special driving privileges to an individual

       whose license has been administratively suspended by BMV. The trial court

       granted Watson’s petition; however, BMV refused to issue the privileges

       because of its stated inability to grant special driving privileges on a valid

       Indiana license or a suspended Illinois license.


[10]   Watson subsequently filed a Motion to Compel Issuance of Specialized Driving

       Privileges or to Issue a Valid Driver’s License Credential. In his motion,

       Watson argued Article 5, Section 2 of Indiana Code section 9-28-1-3 applies

       “only to the application for a new license where the applicant holds or held a

       license from another party state, and does not apply to the renewal of a

       currently held Indiana license, and the BMV . . . must issue the appropriate

       credential to [Watson] for a valid chauffeur’s license.” Appellant’s App. at 28-

       29. The motion also alleged BMV is equitably estopped from refusing to issue a

       chauffeur’s license as Watson acted in reliance upon BMV’s license renewals

       for fourteen years. The trial court held a hearing on the motion, granted

       Watson’s Motion to Issue a Valid Driver’s License Credential, and ordered

       BMV to issue a chauffeur’s license to Watson.


[11]   We agree with BMV that Watson requested and the trial court engaged in

       judicial review of an agency decision. Although labeled otherwise, Watson’s

       Court of Appeals of Indiana | Opinion 45A03-1607-MI-1538 | January 23, 2017   Page 7 of 14
       Motion to Compel Issuance of Specialized Driving Privileges or to Issue a Valid

       Driver’s License Credential, at least in relevant part, challenged BMV’s denial

       of his license renewal, contested BMV’s interpretation of the Driver License

       Compact Act, and requested the trial court overrule BMV’s decision and order

       it to issue him a chauffeur’s license. The trial court agreed with Watson and, in

       its order, concluded BMV misinterpreted the relevant statutory provisions on

       which it based its license denial. Because Watson’s motion to compel

       effectively petitioned the trial court for judicial review of BMV’s decision,

       Watson was required to comply with AOPA. See Ind. Code § 4-21.5-5-1

       (establishing AOPA as the exclusive means for judicial review of an agency

       action).


         III. Retroactive Application of Statutory Amendments
[12]   As noted above, AOPA provides the “exclusive means for judicial review of an

       agency action.” Ind. Code § 4-21.5-5-1. However, AOPA does provide for

       certain exceptions and exemptions, and, effective May 2015, the Indiana

       General Assembly created a separate statutory provision for administrative

       review of certain actions taken by BMV. See Ind. Code § 9-33 et seq. If a party

       desires to contest a BMV action enumerated in Indiana Code section 9-33-1-1,

       it must now follow the procedures outlined in Indiana Code section 9-33-2-3,

       rather than AOPA. The 2015 law did not exclude BMV actions taken pursuant

       to Indiana Code article 9-28 (including the Driver License Compact Act) from

       judicial review under AOPA. However, effective July 1, 2016, the General

       Assembly amended Indiana Code sections 4-21.5-2-5 and 9-33-1-1 to exclude

       Court of Appeals of Indiana | Opinion 45A03-1607-MI-1538 | January 23, 2017   Page 8 of 14
       actions taken by BMV under Indiana Code article 9-28 from judicial review

       under AOPA. Ind. Code § 4-21.5-2-5(18), added by P.L. 198-2016, Sec. 6

       (2016); see also Ind. Code § 9-33-1-1(7), added by P.L. 198-2016, Sec. 630 (2016).

       To combat BMV’s argument that the statutory procedures outlined in AOPA

       should have been followed, Watson alleges the 2016 statutory amendments

       excluding BMV actions taken pursuant to Indiana Code article 9-28 from

       AOPA should be applied retroactively.


[13]   The general rule in Indiana is that “[s]tatutes are to be given prospective effect

       only, unless the legislature unequivocally and unambiguously intended

       retrospective effect as well.” State v. Pelley, 828 N.E.2d 915, 919 (Ind. 2005).

       An exception to this general rule exists for remedial or procedural statutes.

       Martin v. State, 774 N.E.2d 43, 44 (Ind. 2002). Although statutes and rules that

       are procedural or remedial may be applied retroactively, they are not required

       to be. Pelley, 828 N.E.2d at 919. Even for procedural or remedial statutes,

       “retroactive application is the exception, and such laws are normally to be

       applied prospectively absent strong and compelling reasons.” Hurst v. State, 890

       N.E.2d 88, 95 (Ind. Ct. App. 2008) (quotation omitted), trans. denied.


[14]   We find no strong or compelling reasons to apply the amendments

       retroactively, nor does Watson offer any. The General Assembly did not

       specify the amended statute would apply retroactively and nothing in the plain

       language of the statute indicates an unequivocal and unambiguous retrospective

       intent. Further, we fail to see how retroactive application of the statute would

       benefit Watson. If the statutes applied retroactively and AOPA did not apply,

       Court of Appeals of Indiana | Opinion 45A03-1607-MI-1538 | January 23, 2017   Page 9 of 14
       then the administrative review procedures enacted in Indiana Code article 9-33

       would apply, with which Watson did not comply (nor could he). The General

       Assembly simply removed Indiana Code article 9-28 from judicial review under

       AOPA and, effective July 1, 2016 (three weeks after the trial court denied

       BMV’s motion to correct error), placed it in a separate administrative review of

       certain BMV actions. Consistent with the intent of the General Assembly, one

       of the two procedures must apply for judicial review of BMV actions taken

       pursuant to Indiana Code article 9-28, and both require service upon the

       Attorney General. See Ind. Code § 9-33-2-4(a); Ind. Code § 4-21.5-5-8(a).

       However, because we find no strong or compelling reasons, we decline to apply

       the statute retroactively.


                                    IV. Personal Jurisdiction
[15]   Generally speaking, ineffective service of process prohibits a trial court from

       having personal jurisdiction over a defendant. Thomison v. IK Indy, Inc., 858

       N.E.2d 1052, 1055 (Ind. Ct. App. 2006). Indiana Code section 4-21.5-5-8

       describes whom a petitioner seeking judicial review must serve and how service

       is to be achieved:


               (a) A petitioner for judicial review shall serve a copy of the
               petition upon:

                        (1) the ultimate authority issuing the order;

                        (2) the ultimate authority for each other agency exercising
                        administrative review of the order;

                        (3) the attorney general; and

       Court of Appeals of Indiana | Opinion 45A03-1607-MI-1538 | January 23, 2017   Page 10 of 14
                        (4) each party to the proceeding before an agency;

                        in the manner provided by the rules of procedure
                        governing civil actions in the courts. If the ultimate
                        authority consists of more than one (1) individual, service
                        on the ultimate authority must be made to the secretary or
                        chairperson of the ultimate authority.


       BMV argues because AOPA applies, Watson was required to serve the

       Attorney General; because he did not, the trial court lacked personal

       jurisdiction to order BMV to issue a chauffeur’s license. 2 In support of its

       argument, BMV cites to Guy v. Comm’r, Ind. Bureau of Motor Vehicles, 937 N.E.2d

       822 (Ind. Ct. App. 2010).


[16]   In Guy, Guy sought judicial review of BMV’s decision to revoke his driver’s

       license. Guy listed only “Commissioner, Indiana Bureau of Motor Vehicles” as

       the Respondent, and a summons was sent to the Commissioner in Indianapolis.

       Id. at 823. At a hearing on Guy’s petition, no one appeared on behalf of the

       Commissioner. The trial court denied Guy’s petition to order the

       Commissioner to renew his Indiana driver’s license. This court affirmed,

       reasoning the language in Indiana Code section 4-21.5-5-8 expressly requires




       2
         Watson contends BMV has waived this argument because a “party may not raise an issue for the first time
       in a motion to correct error or on appeal.” Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind. 2000). However, given
       our longstanding preference for deciding cases on their merits, Brazier v. Maple Lane Apartments I, LLC, 45
       N.E.3d 442, 451 (Ind. Ct. App. 2015), trans. denied. and our conclusion Watson omitted to serve the Attorney
       General as required by law, we decline to find BMV waived this issue.

       Court of Appeals of Indiana | Opinion 45A03-1607-MI-1538 | January 23, 2017                    Page 11 of 14
       service upon the parties listed in the statute, and without it, the court is without

       personal jurisdiction to enter an order. Id. at 826.


[17]   Watson attempts to distinguish Guy and directs us to Evans v. State, 908 N.E.2d

       1254 (Ind. Ct. App. 2009). In Evans, the Indiana Family and Social Services

       Administration (“FSSA”) determined that Evans was not eligible for certain

       Medicaid coverage. Evans filed a verified petition for judicial review of FSSA’s

       determination. He sent a summons to the Governor at the Indiana Statehouse

       through certified mail. The summons named the State of Indiana and FSSA as

       respondents. Another summons was sent to the Attorney General through

       certified mail. This summons also referred to the State and FSSA as

       respondents. A deputy attorney general entered an appearance on behalf of the

       State and FSSA and requested an extension of time to respond to Evans’

       petition. Subsequently, the State and FSSA filed a motion to dismiss Evans’

       petition on the basis that the trial court did not obtain personal jurisdiction

       because Evans failed to serve FSSA. The trial court granted the motion to

       dismiss.


[18]   On appeal, this court noted the general rule that ineffective service of process

       precludes a trial court from obtaining personal jurisdiction. Id. at 1258.

       However, we noted that where there is not a complete lack of service, the

       general rule is not always applicable. Id. We concluded that even though

       Evans incorrectly sent a summons to the Governor instead of FSSA, dismissal

       for lack of personal jurisdiction was not warranted. Id. In so concluding, we

       noted that Indiana Trial Rule 4.15(F) provides that “[n]o summons or the

       Court of Appeals of Indiana | Opinion 45A03-1607-MI-1538 | January 23, 2017   Page 12 of 14
       service thereof shall be set aside or be adjudged insufficient when either is

       reasonably calculated to inform the person to be served that an action has been

       instituted against him, the name of the court, and the time within which he is

       required to respond.” Id. Therefore, because a deputy attorney general entered

       an appearance on behalf of the State and FSSA, FSSA had actual notice and

       the summons was reasonably calculated to inform FSSA of the lawsuit. Id. at

       1259.


[19]   We think the facts of this case more closely resemble Guy than Evans. Watson

       disputes service was ineffective because a deputy prosecutor appeared on behalf

       of BMV. However, we note Watson’s original action was a petition for special

       driving privileges. As such, a prosecuting attorney was statutorily required to

       appear on behalf of BMV with regard to the issuance of special driving

       privileges. See Ind. Code § 9-30-16-4(c) (stating a “prosecuting attorney shall

       appear on behalf of the bureau to respond to a petition filed under this

       section”). The prosecuting attorney is not charged with defending judicial

       review of agency action, and once Watson decided to petition the trial court for

       judicial review, the Attorney General was required to be served.3 Moreover,

       given the deputy prosecutor’s lack of significant participation in the March 8,

       2016, hearing on Watson’s Motion to Issue a Valid Driver’s License Credential,




       3
         To the extent Watson argues service was reasonably calculated to inform the Attorney General of the
       lawsuit because he fully complied with the service requirements of the special driving privileges statute by
       serving the Commissioner of the BMV and the prosecuting attorney, see Ind. Code § 9-30-16-4(b)(6), we note
       Indiana Trial Rule 4.6(A)(3) also requires service upon an agency’s executive officer and the Attorney
       General when serving a state governmental organization.

       Court of Appeals of Indiana | Opinion 45A03-1607-MI-1538 | January 23, 2017                    Page 13 of 14
       we conclude, similar to Guy, BMV was unrepresented in Watson’s petition for

       judicial review. Because Watson did not serve the Attorney General, his

       service of process was ineffective and the trial court lacked jurisdiction to order

       BMV to issue a chauffeur’s license. See Guy, 937 N.E.2d at 826.4



                                                 Conclusion
[20]   Although labeled otherwise, we conclude Watson’s Motion to Issue a Valid

       Driver’s License Credential effectively asked the trial court to engage in judicial

       review of an agency action. As such, Watson was required to comply with

       AOPA and serve the Attorney General, which he failed to do. Absent valid

       service upon the Attorney General, the trial court lacked personal jurisdiction to

       order BMV to issue a chauffeur’s license to Watson. Accordingly, we reverse

       the trial court’s denial of BMV’s motion to correct error and vacate its order

       directing BMV to issue Watson a chauffeur’s license.


[21]   Reversed and vacated.


       Kirsch, J., and Barnes, J., concur.




       4
        Because we conclude the trial court lacked jurisdiction to order BMV to issue Watson a license, we do not
       address Watson’s argument BMV is equitably estopped from denying a license credential to Watson.

       Court of Appeals of Indiana | Opinion 45A03-1607-MI-1538 | January 23, 2017                   Page 14 of 14
