                                                                FILED
                                                           Nov 22 2019, 8:17 am

                                                                CLERK
                                                            Indiana Supreme Court
                                                               Court of Appeals
                                                                 and Tax Court




ATTORNEYS FOR APPELLANT
Curtis T. Hill, Jr.
Attorney General of Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Indiana Bureau of Motor                                  November 22, 2019
Vehicles,                                                Court of Appeals Case No.
Appellant-Respondent,                                    19A-MI-107
                                                         Appeal from the Vigo Superior
        v.                                               Court
                                                         The Honorable Christopher A.
Gregory D. Schneider,                                    Newton, Judge
Appellee-Petitioner,                                     Trial Court Cause No.
                                                         84D04-1712-MI-9013



Robb, Judge.




Court of Appeals of Indiana | Opinion 19A-MI-107 | November 22, 2019                 Page 1 of 9
                                Case Summary and Issue
[1]   Gregory Schneider applied to the trial court for an order directing the Bureau of

      Motor Vehicles (“BMV”) to issue a certificate of title to a truck he purchased at

      an auction. Over the BMV’s objection, the trial court ordered the BMV to issue

      a salvage title to the vehicle. The BMV now appeals, raising one issue for our

      review: whether the trial court’s judgment is contrary to law. Concluding the

      trial court’s order is contrary to Indiana Code section 9-22-3-18, we reverse.



                            Facts and Procedural History
[2]   In June 2017, Schneider purchased a 2013 Ford F-250 truck with a vehicle

      identification number (“VIN”) ending in 2853 at a salvage auction. The

      certificate of title Schneider was given was lost or destroyed, and Schneider

      therefore applied to the trial court for an order directing the BMV to issue a

      certificate of title. Attached to Schneider’s application, inter alia, was an

      Affidavit of Restoration for a Salvage Motor Vehicle signed by a Terre Haute

      Police Department patrolman attesting that the patrolman had personally

      examined the vehicle and certifying that the “salvage restoration conforms to

      Indiana Code [ch.] 9-22-3.” Appellant’s Appendix, Volume 2 at 32. The trial

      court issued an order on January 11, 2018, instructing the BMV to “issue a

      certificate of title to [Schneider] upon receipt of payment of all requisite costs

      and fees.” Id. at 23.




      Court of Appeals of Indiana | Opinion 19A-MI-107 | November 22, 2019        Page 2 of 9
[3]   On June 5, 2018, the BMV filed a motion for relief from judgment, alleging it

      had not been served with the application or a summons and was unaware of the

      trial court’s order until receiving a title application packet from Schneider on

      May 25, 2018. Upon receiving the packet, the BMV ran the truck’s VIN

      through the National Motor Vehicle Title Information System (“NMVTIS”)1

      and found the title was branded2 as “[c]rushed” in Louisiana as of October 20,

      2016. Id. at 24. Such a brand means the “frame or chassis of the vehicle has

      been crushed or otherwise destroyed so that it is physically impossible to use it

      in constructing a vehicle.” Id. Citing Indiana Code section 9-22-3-18, which

      prohibits issuance of a certificate of title for a vehicle that has been designated

      junk, dismantled, scrap, destroyed, “or any similar designation in another state

      or jurisdiction[,]” the BMV asked that the trial court’s January 11, 2018 order

      be vacated as contrary to law. The trial court granted the BMV’s motion “to

      the extent it directs issuance of a certificate of title” and set the matter for a

      hearing. Id. at 17.




      1
        NMVTIS “serves as a repository of information related to vehicles that have been in the possession of auto
      recyclers, junk yards and salvage yards. This repository is then used by states and consumers to ensure that
      junk or salvage vehicles are not later re-sold[.]” National Motor Vehicle Title Information System Reporting
      Entities, https://www.vehiclehistory.gov/nmvtis_auto.html (last visited November 5, 2019). The United
      States Department of Justice oversees the implementation and operation of NMVTIS. National Motor
      Vehicle Title Information System FAQs, https://www.vehiclehistory.gov/nmvtis_faq.html (last visited
      November 5, 2019).
      2
        “A ‘brand’ is a descriptive label that states assign to a vehicle to identify the vehicle’s current or prior
      conditions, such as ‘junk,’ ‘salvage,’ ‘flood,’ or other designation.” National Motor Vehicle Title
      Information System Consumers, https://www.vehiclehistory.gov/nmvtis_consumers.html (last visited
      November 5, 2019). NMVTIS collects brand information but does not change the nomenclature used in
      individual state motor vehicle laws. Id. A state’s laws, standards, and terminology are not affected by
      NMVTIS. Id.

      Court of Appeals of Indiana | Opinion 19A-MI-107 | November 22, 2019                                   Page 3 of 9
[4]   Schneider appeared in person for the hearing on July 13, 2018, and the BMV

      appeared by counsel telephonically. The BMV stated that as long as the trial

      court’s most recent order granting its motion to set aside the judgment stands,

      “[w]e don’t have any other interest in this matter.” [July 13, 2018] Petition for

      Title Hearing (“July Tr.”), Volume 2 at 6. Schneider asserted the truck was a

      “flood vehicle” and stated he wanted “to pay taxes on it so [he] can license it

      and insurance [sic] it and drive it.” Id. at 7. The trial court set a review hearing

      and took the matter under advisement to “[s]ee if there isn’t something else that

      could be done[.]” Id. at 8. At the review hearing,3 the trial court stated,

      “[Schneider] said he wants a salvaged title or whatever. I mean, he just wants

      to drive the car which is understandable[.] . . . I’ll order the BMV to issue him a

      salvaged title and then, let’s just see what . . . they do this time.” [December

      10, 2018] Petition for Title Hearing (“Dec. Tr.”), Volume 2 at 7. Accordingly,

      the trial court issued a written order that the BMV “shall issue a certificate of

      title (salvaged) to [Schneider] upon receipt of payment of all requisite costs and

      fees.” Appealed Order at 2 (emphasis added). The BMV now appeals.



                                  Discussion and Decision
[5]   Initially, we note that Schneider failed to file an appellee’s brief. When the

      appellee fails to file a brief on appeal, we do not undertake the burden of




      3
       Schneider failed to appear for the review hearing set for August 24, 2018. At the BMV’s request, the trial
      court dismissed the case without prejudice. Schneider later wrote a letter to the court requesting a new
      hearing date. The review hearing was eventually held on December 10, 2018.

      Court of Appeals of Indiana | Opinion 19A-MI-107 | November 22, 2019                              Page 4 of 9
      developing arguments for that party. Trinity Homes, LLC v. Fang, 848 N.E.2d

      1065, 1068 (Ind. 2006). Rather, we will reverse the trial court’s judgment if the

      appellant makes a prima facie showing of reversible error. Id. In this context,

      prima facie error is defined as “at first sight, on first appearance, or on the face

      of it.” Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006).


[6]   The BMV contends that the trial court’s order was contrary to law because

      Indiana Code section 9-22-3-18 prohibits issuance of any title to this vehicle.

      The interpretation of a statute is a question of law which we review de novo.

      BP Prods. N. America, Inc. v. Ind. Office of Util. Consumer Counselor, 964 N.E.2d

      234, 236 (Ind. Ct. App. 2011). “The primary purpose of statutory interpretation

      is to ascertain and give effect to the intent of the legislature. The best evidence

      of legislative intent is the statutory language itself, and we strive to give the

      words in a statute their plain and ordinary meaning.” 21st Amendment, Inc. v.

      Ind. Alcohol & Tobacco Comm’n, 84 N.E.3d 691, 696 (Ind. Ct. App. 2017)

      (citations and internal quotation marks omitted), trans. denied.


[7]   We begin by elaborating on Indiana’s Salvage Motor Vehicles Act. Ind. Code

      ch. 9-22-3. Whereas a “salvage vehicle” might be considered in the common

      vernacular to be any number of vehicles used for parts or scrap, the Salvage

      Motor Vehicles Act allows a salvage title to be issued only to a very specific

      category of salvage vehicles described in Indiana Code section 9-22-3-3.

      Relevant to this case is that the statute requires a flood damaged vehicle

      manufactured within the last seven years to have a salvage title. Ind. Code § 9-



      Court of Appeals of Indiana | Opinion 19A-MI-107 | November 22, 2019          Page 5 of 9
      22-3-3(a)(3).4 If a vehicle for which a salvage title has been issued is later

      repaired and made operable, a “rebuilt vehicle title” may be obtained. Ind.

      Code § 9-22-3-15. Schneider and the trial court both referred to this truck as a

      “flood vehicle.” See July Tr., Vol. 2 at 7; Dec. Tr., Vol. 2 at 6. Schneider

      provided proof that the vehicle was inspected by a police officer and deemed

      roadworthy. He also showed the trial court a picture of the vehicle at the July

      hearing and the trial court observed that “it looks fine.” July Tr., Vol. 2 at 7.

      The trial court understandably wanted to offer Schneider some avenue to be

      able to drive his vehicle. However, other than Schneider’s assertion, there is no

      evidence that this vehicle meets the definition of a flood damaged vehicle such

      that it could have been issued a salvage title. See Ind. Code § 9-22-3-2.5.


[8]   Moreover, even if this vehicle did meet the definition of a flood damaged

      vehicle, it appears that the plain language of section 9-22-3-18 would still

      prohibit it from being titled if it also bears a particular brand. Indiana Code

      section 9-22-3-18 states, “A vehicle that has been designated ‘JUNK’,

      ‘DISMANTLED’, ‘SCRAP’, ‘DESTROYED’, or any similar designation in

      another state or jurisdiction shall not be titled in Indiana.” (Emphasis added.)

      Only one case has addressed this statute. Ind. Bureau of Motor Vehicles v. Majestic

      Auto Body, 128 N.E.3d 466 (Ind. Ct. App. 2019), concerned an effort to title two




      4
       Section 9-22-3-3(a)(1) requires a salvage title when an insurer has determined that it is economically
      impractical to repair a wrecked or damaged motor vehicle and has settled with the insured. Section 9-22-3-
      3(a)(2) requires a salvage title when the owner of the vehicle is self-insured or acquired the vehicle after it was
      wrecked, destroyed, or damaged and the cost of repairing the vehicle exceeds 70% of the fair market value
      immediately before it was wrecked, destroyed, or damaged.

      Court of Appeals of Indiana | Opinion 19A-MI-107 | November 22, 2019                                   Page 6 of 9
vehicles that had been purchased at an auction in Texas. The vehicles were

branded junk vehicles because they had been damaged during Hurricane

Harvey. The NMVTIS report indicated the vehicles were “incapable of safe

operation for use on the roads or highways and [have] no resale value except as

a source of parts or scrap.” Id. at 467. Upon bringing the vehicles to Indiana,

Majestic had them inspected by the Indiana State Police, which gave both

vehicles favorable roadworthiness reports.5 Majestic then applied to obtain

clean title to the vehicles. The trial court ultimately ordered the BMV to issue

salvage titles to the vehicles.6 The BMV appealed, citing Indiana Code section

9-22-3-18. We held:


         The evidence undeniably establishes that the vehicles had been
         damaged by a flood, and Texas had designated both vehicles as
         junk . . . . Notwithstanding the State Police’s conclusion that the
         vehicles seemed roadworthy and showed no apparent signs of
         damage, Indiana Code section 9-22-3-18 is clear that a vehicle
         which has been designated as junk, dismantled, scrap, destroyed
         or any similar designation in another state or jurisdiction cannot
         be titled in Indiana. . . . The trial court reasoned that, because
         Texas had issued salvage titles to the vehicles, they should
         therefore receive similar titles in Indiana. However, under the
         plain and unambiguous terms of Indiana Code 9-22-3-18,




5
  In both Majestic and this case, the purchasers availed themselves of the statutory procedure for having the
police inspect their vehicles and the vehicles were declared roadworthy. See Ind. Code § 9-22-3-15. If the
legislature intended by this procedure for Indiana to have a say in whether a vehicle continues to meet the
designation given by another state, it should amend the statute to so state.
6
 The trial court initially ordered the BMV to issue clean title to both vehicles. The BMV filed a Trial Rule
60(B) motion for relief from judgment claiming the orders to issue clean title violated Indiana Code section 9-
22-3-18. After a hearing on the BMV’s motion, the trial court issued a nunc pro tunc order directing the
BMV to issue salvage, rather than clean, titles to the vehicles.

Court of Appeals of Indiana | Opinion 19A-MI-107 | November 22, 2019                                Page 7 of 9
              Majestic’s vehicles cannot be titled in Indiana since Texas had
              designated them as junk vehicles.


      Id. at 470-71. Accordingly, we reversed the trial court’s order requiring the

      BMV to issue salvage titles to the vehicles. Id. at 471.


[9]   The result in Majestic was clear because another state had branded the vehicles

      in question “junk,” a designation specifically referenced in section 9-22-3-18.

      Here, the designation is “crushed,” a term not specifically used in the statute.

      Nonetheless, the scope of the statute includes vehicles given a “similar

      designation” to “junk,” “dismantled,” “scrap,” or “destroyed” by another state.

      Therefore, it is the substance of the brand rather than the specific word that

      controls whether section 9-22-3-18 applies. The NMVTIS explanation of the

      “crushed” designation is that the frame has been “crushed or otherwise destroyed

      so that it is physically impossible to use it in constructing a vehicle.”

      Appellant’s App., Vol. 2 at 24 (emphasis added). As Schneider has not filed a

      brief offering any argument for why “crushed” is not a “similar designation” to

      those in the statute and as “crushed” is, in part, defined as “destroyed,” we

      conclude the BMV has made a prima facie showing of error. The plain and

      unambiguous language of section 9-22-3-18 prohibits the issuance of a title of

      any sort to this vehicle.



                                              Conclusion



      Court of Appeals of Indiana | Opinion 19A-MI-107 | November 22, 2019        Page 8 of 9
[10]   The trial court acted contrary to law in ordering the BMV to issue a certificate

       of salvage title to Schneider’s vehicle that had been branded “crushed” by

       another state. The judgment of the trial court is reversed.


[11]   Reversed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 19A-MI-107 | November 22, 2019      Page 9 of 9
