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,                   Nov 19 2014, 10:22 am
collateral estoppel, or the law of the case.




PRO SE APPELLANT:                                       ATTORNEYS FOR APPELLEE:

THOMAS R. COX                                           GREGORY F. ZOELLER
Panama City, Florida                                    Attorney General of Indiana

                                                        KATHY BRADLEY
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA


THOMAS R. COX,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 39A04-1402-MI-88
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE JEFFERSON SUPERIOR COURT
                            The Honorable Alison Frazier, Judge
                              Cause No. 39D01-1310-MI-945
                                        November 19, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                       Case Summary

       Thomas R. Cox (“Cox”), proceeding pro se at trial and before this Court, appeals the

trial court’s order dismissing his constitutional and tort claims against the Indiana Bureau of

Motor Vehicles (“BMV”).

       We affirm.

                               Facts and Procedural History

       In conformance with our standard of review of a dismissal under Trial Rule 12(B)(6),

we take portions of our statement of fact from Cox’s complaint.

       Sometime in the early-to-middle 2000’s, Cox, while a resident of Indiana, purchased a

vehicle from a car dealership in Fishers. Within several days of Cox’s purchase, the

dealership filed for bankruptcy protection, and Cox was, for unknown reasons, unable to

acquire a certificate of title for the purchased van.

       Cox soon thereafter moved to the state of Washington. Over the ensuing years, Cox

was pulled over and cited for various traffic violations; some of these citations related to

driving the van, for which he was unable to obtain license plates despite his efforts.

Eventually, Cox’s driving privileges were suspended, with suspended license adjudications

arising in several Indiana counties.

       At some point, Cox returned to Indiana. During this time, he was stopped and cited

for driving with a suspended license in Greenwood and Madison and in Jennings County.

During 2012, Cox attempted to and believed he had resolved these matters, but only the

Jennings County citation had been resolved.



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        In 2013, Cox moved to Florida. On April 13, 2013, while in Florida, Cox was pulled

over and arrested for driving with a suspended driver’s license. As a result of Cox’s arrest

and citation in Florida for driving with a suspended license, Florida sent information to the

BMV that caused the BMV to suspend Cox’s driver’s license once again.

        In May 2013, the BMV sent Cox notice that his license was again suspended in

Indiana. The BMV’s letter to Cox was sent to an Indiana address at which Cox no longer

resided; Cox thus learned of the suspension a month or two later. On August 15, 2013, the

BMV sent Cox another notice of suspension, again at an Indiana address. Cox attempted to

resolve the situation with the BMV by filing an administrative appeal, which was denied.

        On October 21, 2013, Cox filed suit against the BMV, alleging facts sounding in due

process under the Fifth and Fourteenth Amendments to the United States Constitution,1 and

in negligence.

        On December 16, 2013, the BMV filed a motion to dismiss. On February 7, 2014, the

trial court conducted a hearing on the motion to dismiss, at the conclusion of which the court

granted the State’s motion and dismissed Cox’s complaint.

        This appeal ensued.2




1
  Though these alleged facts sounded in due process matters, Cox does not in this case directly challenge
the BMV’s administrative adjudication of his appeal.
2
  The BMV argues that Cox’s complaint in this matter is an attempt to re-litigate matters resolved
unfavorably to him in a 2011 case. The facts alleged in the complaint pertain to incidents that occurred
after 2011, and thus we decline to resolve the case now before us under the doctrine of res judicata.

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                                  Discussion and Decision

                                     Standard of Review

       Cox appeals the trial court’s order, which dismissed his complaint sounding in due

process and negligence. A motion to dismiss for failure to state a claim under Trial Rule

12(B)(6) tests the legal sufficiency of the claims made in the complaint, not the facts alleged

in support of the claims. Charter One Mortg. Corp. v. Condra, 865 N.E.2d 602, 604 (Ind.

2007). We review de novo appeals from orders granting or denying motions under Rule

12(B)(6). Id. We view the pleadings in the light most favorable to the nonmovant, and all

reasonable inferences are construed in the nonmovant’s favor. Id. A complaint may not be

dismissed for failure to state a claim “unless it is clear on the face of the complaint that the

complaining party is not entitled to relief.” Id. at 605.

                                    Constitutional Claims

       We turn first to Cox’s contentions in his complaint that the BMV’s conduct deprived

him of due process of law under the United States Constitution.

       Cox’s complaint advances three bases for relief sounding in due process. He contends

that 1) the BMV has a “policy of denying services for non-residents” that is unsupported in

the Indiana Code; 2) he was deprived of due process because of recordkeeping issues at the

BMV and the BMV’s refusal to correct information related to Cox’s traffic citation in

Florida, which the BMV stated it could not correct “without a court order;” and 3) the

BMV’s procedure for addressing appeals from administrative agency action are

constitutionally inadequate. (Appellee’s App’x at 4.) In its motion to dismiss and again on



                                               4
appeal, the BMV contended that Cox’s constitutional claims were advanced under 42 U.S.C.

§ 1983, but because Cox named the BMV as a defendant and not specific individuals, he

failed to state a claim upon which relief could be granted.

       The trial court and the BMV explored the question of constitutional claims under

Section 1983 in an effort to determine the nature and scope of Cox’s allegations in his pro se

complaint. In his reply brief before this Court, Cox clarifies that he “never raised the issue of

a 42 U.S.C. Section 1983 claim,” but that the BMV and trial court raised those matters.

(Reply Br. at 2.) Rather, Cox states that “[t]he constitutional questions were addressed by the

appellant only in the context of a historical case filed,” and he raised those issues only to note

       the systematic disregard by the Indiana BMV in establishing quality controls,
       correcting mistakes, and continued disregard for such compliance and quality
       control unless the organization loses a civil suit in court. The intent is to
       portray that this is not errors and omissions by the organization, but rather,
       complete disregard for establishing quality controls.

(Reply Br. at 2.)

       Cox, then, asserts that to the extent he raised any matters of constitutional dimension,

he did so not to advance any such claim as a basis for relief. This is consistent with his

response to the trial court’s question during the hearing on the motion to dismiss, “Is that, or

is that not a constitutional claim?” (Tr. at 10.) Cox stated, “it’s not intended to be.” (Tr. at

10.)

       This Court has held that representations by counsel or by a party as to the nature and

effect of causes of action are binding. Heyser v. Noble Roman’s, Inc., 933 N.E.2d 16, 20-21

(Ind. Ct. App. 2010), trans. denied (affirming dismissal where counsel stated plaintiff was


                                                5
pursuing only actual fraud and not constructive fraud claims). Cox’s representations to this

Court and the trial court disclaim any substantive constitutional claims. We accordingly

affirm the trial court’s dismissal of his complaint to the extent it raised constitutional matters

for relief.

                                          Tort Claims

        Unlike the constitutional issues, Cox reaffirms in his reply brief that he seeks

injunctive and monetary relief from the BMV under a negligence theory, that is, a claim for

relief sounding in tort. The trial court, articulating from the bench its reasons for dismissing

Cox’s complaint, stated that Cox had failed to file a timely notice of tort claim with the

BMV. The court noted specifically that Cox had failed to file a notice of tort claim with the

BMV within 180 days of his learning of the BMV’s suspension of his license.

        Indiana Code chapter 34-13-3 sets forth the provisions of the Indiana Tort Claims Act

(“the Act”). Section 34-13-3-6 of the Act provides:

        Except as provided in sections 7 and 9 of this chapter, a claim against the state
        is barred unless notice is filed with the attorney general or the state agency
        involved within two hundred seventy (270) days after the loss occurs.
        However, if notice to the state agency involved is filed with the wrong state
        agency, that error does not bar a claim if the claimant reasonably attempts to
        determine and serve notice on the right state agency.

I.C. § 34-13-3-6(a).

        Here, Cox did not file a notice of tort claim with the BMV until February 10, 2014—

three days after the trial court entered its order of dismissal. “Compliance with the notice

provisions of [the Act] is a procedural precedent which the plaintiff must prove and which

the trial court must determine before trial.” Brown v. Alexander, 876 N.E.2d 376, 383 (Ind.

                                                6
Ct. App. 2007), trans. denied. “The purpose of the notice requirement is to inform state

officials with reasonable certainty of the accident or incident and surrounding circumstances

so that the state may investigate, determine its possible liability, and prepare a defense to the

claim.” Ricketts v. State, 720 N.E.2d 1244, 1246 (Ind. Ct. App. 1999), trans. denied. Where

a government agency subject to a tort claim alleges as an affirmative defense that the plaintiff

has failed to properly file the notice of claim, the plaintiff must bear the burden of

establishing compliance—either actual or substantive. Brown, 876 N.E.2d at 384.

       Cox observes that the tort claim period as it applies to a state agency like the BMV is

270 days, not the 180 days the trial court applied, and that the court raised the tort claim issue

despite his not having addressed it. Yet Cox does not contend that he satisfied the tort claim

notice requirements before filing his suit, compliance with which was procedurally required

for him to be able to initiate and sustain the litigation. Indeed, Cox failed to file his tort

claim notice until after the complaint had been dismissed, and thus failed to satisfy the

requirements for bringing a tort claim sounding in negligence against the BMV; he does not,

in this appeal, advance any argument as to substantial compliance with the Act’s notice

provision.

       Accordingly, we find no error in the trial court’s dismissal of Cox’s complaint as to

negligence.




                                                7
                                      Conclusion

      Cox has abandoned any constitutional claims raised by his complaint. The trial court

did not err when it concluded that Cox failed to timely file a notice of tort claim, and

correctly dismissed his complaint sounding in negligence.

      Affirmed.

NAJAM, J., and PYLE, J., concur.




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