                                                   Dec 30 2014, 8:51 am
FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       APPELLEE, PRO SE:

GREGORY F. ZOELLER                            JOSEPH MILLS
Attorney General of Indiana                   Madisonville, Kentucky

FRANCES BARROW
Deputy Attorney General
Indianapolis, Indiana


                               IN THE
                    COURT OF APPEALS OF INDIANA

DONALD SNEMIS, Commissioner of the            )
Indiana Bureau of Motor Vehicles; and         )
MELVIN WILHELM, Prosecuting Attorney,         )
                                              )
       Appellant-Respondents,                 )
                                              )
              vs.                             )        No. 24A01-1408-MI-329
                                              )
JOSEPH P. MILLS,                              )
                                              )
       Appellee-Petitioner.                   )


                    APPEAL FROM THE FRANKLIN CIRCUIT COURT
                          The Honorable J. Steven Cox, Judge
                            Cause No. 24C01-1404-MI-289


                                   December 30, 2014

                              OPINION – FOR PUBLICATION

PYLE, Judge
                               STATEMENT OF THE CASE

       Appellant/Respondent, Donald Snemis, the Commissioner of the Indiana Bureau

of Motor Vehicles, and Melvin Wilhelm, Prosecuting Attorney, (collectively, “the

BMV”) appeal the trial court’s order vacating the suspension of Appellee/Petitioner

Joseph P. Mills’ (“Mills”) driver’s license. Mills qualified as an habitual traffic violator

(“HTV”) in August 2008, and, as a result, the BMV notified him in January 2012 that his

license would be suspended for ten years. Mills filed a petition for judicial review of the

BMV’s notice, arguing that it was untimely and constituted “extreme unfairness” since

the BMV had waited several years after he qualified as an HTV to suspend his license.

The trial court agreed that the BMV’s delayed notice was unfair and vacated Mills’

suspension.

       On appeal, the BMV claims that there are factual errors in the trial court’s findings

because the trial court miscalculated the time between Mills’ qualification as an HTV and

the BMV’s notice.       The BMV also argues that the court erred in vacating Mills’

suspension because the doctrine of laches does not apply to HTV adjudications. We

reverse and remand with instructions for the trial court to reinstate the BMV’s

adjudication against Mills because we conclude that Mills had the burden of proof on

appeal and did not fulfill that burden as he did not file an appellee’s brief.

       We reverse and remand.

                                           ISSUE

       Whether Mills fulfilled his burden of proof that the BMV’s suspension of
       his license was invalid.


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                                         FACTS

       On January 6, 2012, the BMV notified Mills that it was suspending his license for

ten years because he had committed three motor vehicle violations qualifying him as an

HTV. The convictions the BMV cited were Mills’ August 18, 2000 conviction for

operating a vehicle while intoxicated (“OVWI”) with a prior conviction within five years;

his February 5, 2002 conviction for operating a vehicle without having ever obtained a

license; and his August 19, 2008 conviction for OVWI with a prior conviction within five

years. The notice informed Mills that his license suspension would be effective from

February 10, 2012 through February 7, 2022.

       On April 11, 2014, Mills filed a Verified Petition for Judicial Review requesting

the trial court to vacate his license suspension. He argued that the BMV’s notice was

untimely and constituted “extreme unfairness” because—according to his calculations—

over nine years had passed since the date of the offense that had qualified him as an

HTV. (App. 13). In support of this argument, he noted that after his conviction, the

Indiana Legislature had enacted INDIANA CODE § 9-30-10-5(d), which reduced the

amount of time the BMV may suspend an HTV’s license if it does not suspend the

license within three years of the person qualifying as an HTV. Mills also claimed that

during the nine years between his third qualifying offense and the BMV’s notification, he

had lawfully maintained a driver’s license and had entered into a profession that required

a substantial amount of driving. As a result, he argued that he had demonstrated that he

was no longer a threat to the safety of others and that it was extremely unfair to suspend

his license.

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           On April 23, 2014, the trial court issued its order on Mills’ petition. It found:

           1. That in 2005, the [BMV] was notified of the opportunity to suspend
              [Mills’] license under [INDIANA CODE §] 9-30-10-4.

           2. That the [BMV] failed to comply with the 2005 Order and did not
              suspend [Mills’] license under [INDIANA CODE §] 9-30-10-4 for over
              nine years.

           3. That suspending [Mills’] license for an additional ten (10) years would
              constitute extreme unfairness.

(App. 15). Based on these findings, the trial court ordered the BMV to vacate Mills’

suspension, reinstate his driving privileges, and allow him to obtain an appropriate

license.

           On May 22, 2014, the BMV filed a motion to correct error arguing that the trial

court had erred in finding that the BMV had delayed Mills’ suspension for nine years,

because Mills was not convicted of his third qualifying offense until 2008. The BMV

also argued that laches and equitable estoppel did not apply to the suspension of Mills’

driving privileges.1 The trial court did not schedule a hearing on the motion, and it was

deemed denied under the Indiana Trial Rules on July 6, 2014.2 The BMV now appeals.

                                                   DECISION

           On appeal, the BMV reiterates the arguments it raised in its motion to correct

error: that (1) the trial court’s findings were erroneous; and (2) the trial court erred in

1
    Notably, the trial court did not explicitly base its decision on laches or equitable estoppel.
2
  After the motion to correct error was deemed denied on July 6, 2014, the trial court set the matter for
hearing and held a hearing on August 21, 2014. However, because the trial court clerk had already filed
its notice of completion of the clerk’s record on August 6, 2014, the trial court no longer had jurisdiction
over the motion to correct error by the time it held its hearing. Ind. Appellate Rule 8; In re Guardianship
of Hickman, 811 N.E.2d 843 (Ind. Ct. App. 2004) (“Generally, we acquire jurisdiction over a matter on
the date the trial court clerk issues its notice of completion of the clerk’s record.”), reh’g denied, trans.
denied.
                                                         4
vacating Mills’ suspension because the doctrine of laches does not apply to the BMV’s

suspension of an HTV’s driver’s license. Alternatively, the BMV argues that, even if

laches does apply, the Indiana General Assembly enacted INDIANA CODE § 9-30-10-5(d)

in 2013, which now provides that if the BMV does not notify an HTV of his or her

license suspension within three years, the BMV may suspend that HTV’s license for only

the portion of the ten year period remaining. Therefore, the BMV argues that the trial

court should have reduced Mills’ suspension to the time remaining rather than vacating

the entire suspension.

       When we review an administrative agency’s decision, we stand in the trial court’s

shoes. Ind. State Ethics Comm’n v. Sanchez, 18 N.E.3d 988, 991 (2014). As in the trial

court, “‘the burden of demonstrating the invalidity of agency action is on the party to the

judicial review proceeding asserting invalidity.’” Id. (quoting I.C. § 4-21.5-5-14(a)).

The trial court may reverse the agency’s action

       [o]nly if it determines that a person seeking judicial relief has been
       prejudiced by an agency action that is: (1) arbitrary, capricious, an abuse of
       discretion, or otherwise not in accordance with law; (2) contrary to
       constitutional right, power, privilege, or immunity; (3) in excess of
       statutory jurisdiction, authority, or limitations, or short of statutory right;
       (4) without observance of procedure required by law; or (5) unsupported by
       substantial evidence.

Id. at 991-92 (quoting I.C. § 4-21.5-5-14(d)). We do not reweigh the evidence; rather, we

consider the record in the light most favorable to the agency’s decision. Id. at 992. We

will affirm unless the agency’s conclusions are clearly erroneous. Id.

       In Sanchez, our Supreme Court clarified that the burden of demonstrating the

invalidity of an agency action remains on the party asserting invalidity, even on appeal.

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Id. at n. 1. There, the Indiana State Ethics Commission sanctioned a former State

employee, Sanchez, for her personal use of state resources. Id. at 991. Sanchez filed a

petition for judicial review, and the trial court granted the petition and vacated the

Commission’s report. Id. On appeal to the Supreme Court, Sanchez argued that, because

she had prevailed before the trial court, the Commission had the burden of proof on

appeal. Id. at n. 1. The Supreme Court disagreed, determining that the burden of

demonstrating the invalidity of an agency action remains on the party asserting invalidity

on appeal, even if that party prevailed in the court below. Id.

       Our Supreme Court’s analysis in Sanchez controls the outcome here. The burden

of proof is on Mills, who was the petitioner for judicial review in the trial court and is the

appellee in this Court. However, Mills did not file an appellee’s brief and, as such,

cannot have met his burden of proof on appeal. Accordingly, we summarily reverse the

trial court’s decision and remand with instructions that the trial court reinstate the BMV’s

adjudication against Mills.

       Reversed and Remanded.

NAJAM, J., and BAILEY, J., concur.




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