                                                                                  FILED
                                                                             May 04 2016, 6:21 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
James K. Gilday                                           Pamela G. Schneeman
Gilday & Associates, P.C.                                 Office of Corporation Counsel
Indianapolis, Indiana                                     Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

James K. Gilday,                                          May 4, 2016
Appellant-Petitioner/Plaintiff,                           Court of Appeals Case No.
                                                          49A02-1506-CT-715
        v.                                                Appeal from the Marion Superior
                                                          Court
The City of Indianapolis,                                 The Honorable David A. Shaheed,
Appellee-Respondent/Defendant                             Judge
                                                          Trial Court Cause No.
                                                          49D01-1304-CT-15066



Baker, Judge.




Court of Appeals of Indiana | Opinion 49A02-1506-CT-715 | May 4, 2016                     Page 1 of 15
[1]   This case began with a twenty-dollar parking ticket. It proceeded to a $150

      default judgment. It ended with the receiver of that ticket, Indianapolis

      attorney James Gilday, claiming a right to “statutory liquidated damages of not

      less than $2,500,” plus attorney’s fees, plus punitive damages. Appellant’s App.

      p. 17. We find that Gilday paid his ticket on time, and that therefore he could

      not have been required to pay more. In all other respects, we affirm the

      judgment of the trial court.


                                                      Facts
[2]   On October 20, 2012, Indianapolis hosted a 5K charity run, Making Strides

      Against Breast Cancer. The route went near the Chase Tower, and blocked the

      entrance to the parking garage attached to it. Gilday was unable to get to his

      normal parking spot in that garage, and so instead parked at a parking meter on

      Delaware Street. Believing either that parking was free on Saturdays or that he

      was entitled to free parking due to his blocked parking space, he did not pay the

      parking kiosk. After a full day at his office, he returned to his vehicle to find a

      parking ticket.


[3]   The ticket stated the assessed fine at $20, and said “if not paid within 7 days

      fine increases to $40.00.” Appellant’s App. p. 74. The back of the ticket

      explained several ways to pay the fine. Gilday wrote a check for twenty dollars

      dated October 26, 2012, which is the date Gilday says he mailed it; however,

      the envelope has since been lost. On the back of the check is a stamp from the

      bank used by Citation Collection Services (CCS), which noted the payment as


      Court of Appeals of Indiana | Opinion 49A02-1506-CT-715 | May 4, 2016      Page 2 of 15
      arriving October 31, 2012. An employee of CCS’s parent corporation later

      testified that “CCS uses the JP Morgan Chase Bank received date stamp on the

      back of checks to determine whether a payment on a parking citation has been

      timely made.” Appellant’s App. p. 70.


[4]   The City then sent a letter to Gilday on November 16, 2012, which it claims

      was to assess the $20 late fee. The letter actually says, “Please be advised that

      the following citation issued for violation of a City ordinance remains unpaid . .

      . .” Appellant’s App. p. 77. Nowhere on this letter is there an indication that

      CCS considered Gilday’s payment to be late, or that a late fee was being

      assessed. Gilday did not respond to this letter.


[5]   The City sent another letter to Gilday on January 29, 2013, informing him that

      an administrative hearing would be held on March 21 to address his parking

      ticket. The letter informed him that an administrative judge had the discretion

      to award the City up to $2,500 per parking violation, but told him that if he paid

      his citation a week before the hearing date, the hearing would be removed from

      the court calendar.1 Gilday did not respond to this letter.


[6]   Nor did Gilday attend the March 21, 2013, administrative hearing (the

      Hearing), at which the administrative judge entered a default judgment against




      1
       Indianapolis - Marion County Code section 103-74(d)(5) provides that a notice of administrative hearing
      shall include “The official title . . . of the hearing officer . . . .” Helpfully, this January 29 letter informed
      Gilday that the title of the hearing officer was “Hearing Officer.” Appellant’s App. p. 79.

      Court of Appeals of Indiana | Opinion 49A02-1506-CT-715 | May 4, 2016                                   Page 3 of 15
      him for $150.2 When Gilday received the default judgment in the mail, he

      wrote a letter to the person listed as “City Representative,” Karen White.

      Unfortunately, City Representative Karen White was not a representative of the

      City—she was an employee of the parent corporation of CCS, T2 Systems.

      According to Gilday, he requested several documents involved in the Hearing,

      but never received a response.


[7]   Gilday filed an action in the trial court to review the administrative decision on

      April 22, 2013. His complaint was set out in three counts: first, that the

      administrative hearing was “illegal”; second, that the City acted unlawfully

      when it blocked access to his parking garage, thereby “involuntarily extract[ing]

      money from him either at a prepaid parking meter or by fine”; and third, that

      the City violated the Driver’s Privacy Protection Act (DPPA) by issuing a ticket

      that had “private information” on it. Appellant’s App. p. 12-18. He asked the

      trial court to vacate the $150 default judgment, to have the City refund his

      original $20 ticket, and for damages and attorney’s fees under the DPPA.


[8]   Indianapolis - Marion County Code (Revised Code) section 103-79 requires a

      party petitioning for review of an administrative decision to secure a certified

      copy of the administrative hearing to be filed in the court within fifteen days of

      the decision, or else suffer a dismissal of the petition. Thus, the quest for the

      certified record of the Hearing began.




      2
          We will discuss the authority the City claims it has to institute this penalty below.


      Court of Appeals of Indiana | Opinion 49A02-1506-CT-715 | May 4, 2016                       Page 4 of 15
[9]    Gilday first wrote to the Hearing Officer to request the record, but he received

       no response. He then requested, and was granted, a thirty-day extension to

       obtain the record. Thirty days later, Gilday still had not received a record, and

       so filed for a protective order against the possibility that the City would try to

       dismiss the case. The trial court granted his motion, providing that Gilday

       “shall not be prejudiced by his failure to obtain and file a Record of Hearing as

       required under the Revised Code.” Appellant’s App. p. 154.


[10]   On July 25, 2013, the City’s attorney sent Gilday an email with some

       documents relating to the Hearing, and told him, “I am also working on getting

       a transcript from the hearing that day.” Appellant’s App. p. 242. This effort

       was unavailing, and before anyone had secured a certified record of the

       Hearing, the City moved for summary judgment on May 7, 2014. Included in

       the designated evidence were the ticket, the letters notifying Gilday of the

       Hearing, and the Hearing Officer’s order. The City then wrote to Gilday, “I am

       informed that when a person who has been issued a parking citation fails to

       appear at an administrative hearing, the only record is an audio recording of

       that person’s name being called and an acknowledgement that the person is not

       present.” Appellant’s App. p. 359. The City told Gilday that he could obtain

       the audio recording of someone saying his name by paying T2 Systems $75.


[11]   The parties began wrangling over who should bear this cost; eventually, the

       audio of the Hearing was produced, and Gilday transcribed the audio. Gilday’s

       summary judgment response and cross-motion for summary judgment argued

       that he did not yet have a properly certified record as specified in the Revised

       Court of Appeals of Indiana | Opinion 49A02-1506-CT-715 | May 4, 2016      Page 5 of 15
       Code. The City had T2 Systems prepare a certified hearing record, which

       included a copy of the ticket, the letters sent to Gilday, the Motion for

       Judgment on the Evidence presented at the Hearing, and the Hearing Officer’s

       order. Gilday objected to this version of the record, however, because it did not

       itself contain a certified transcription of the Hearing. The trial court disagreed,

       believing it had enough of a record to render a decision.


[12]   After a March 19, 2015, hearing, the trial court granted the City’s motion for

       summary judgment and denied Gilday’s cross-motion for summary judgment.

       The trial court accepted the City’s argument that a ticket should be considered

       “paid” not when mailed, but rather when stamped by CCS. Therefore, the trial

       court found that there was no genuine dispute over the facts that Gilday was

       late, that he was notified of the administrative hearing, and that the $150

       penalty was appropriate. Gilday now appeals.


                                     Discussion and Decision
[13]   We will divide our analysis according to the claims made by Gilday in his

       complaint. Namely, we will discuss whether summary judgment was properly

       granted regarding 1) the $150 fine, 2) the original ticket, 3) Gilday’s federal

       claims, and 4) Gilday’s request for sanctions against the City.


[14]   When reviewing the grant of a summary judgment motion, we apply the same

       standard applicable to the trial court. Lean v. Reed, 876 N.E.2d 1104, 1107 (Ind.

       2007). Summary judgment is proper only when there is no genuine issue as to

       any material fact and the moving party is entitled to judgment as a matter of

       Court of Appeals of Indiana | Opinion 49A02-1506-CT-715 | May 4, 2016       Page 6 of 15
       law. Ind. Trial Rule 56(C). Where there are cross-motions for summary

       judgment, we will consider each motion separately to determine if the moving

       party was entitled to summary judgment as a matter of law. Diversified Invs.,

       LLC v. U.S. Bank, NA, 838 N.E.2d 536, 539 (Ind. Ct. App. 2005).


                                I. The Administrative Hearing
[15]   As a society that tends to celebrate progress, we hold milestones with a certain

       reverence. We commemorate the Pilgrims who settled on these shores; we take

       special note of mankind’s first steps on the moon; and today, we observe that

       this is the first parking ticket to be successfully appealed to our court. 3 As a

       CCS employee testified, “Had Mr. Gilday contacted CCS before the

       administrative hearing held on March 21, 2013, it is highly likely that CCS

       would have excused the late fee assessed to him.” Appellant’s App. p. 71.

       Since the City tends to dismiss or excuse tickets that are protested, few cases

       proceed beyond the administrative level. Therefore, we will take a moment to

       review the parking ticket scheme before analyzing its application to Gilday.


[16]   Revised Code section 621-227 makes it unlawful for a person to leave a vehicle

       at a metered spot that has expired. The only exception is when the meter is not

       operating properly and the person reports it as such within twenty-four hours.




       3
        More ambitious litigants have previously asked appellate courts to invalidate entire parking ordinances.
       Andrews v. City of Marion, 221 Ind. 422, 47 N.E.2d 968 (1943); Greenwood v. City of Washington, 230 Ind. 375,
       102 N.E.2d 642 (1952); Mitsch v. City of Hammond, 234 Ind. 285, 126 N.E.2d 247 (1955); City of Evansville v.
       Walker, 162 Ind. App. 121, 318 N.E.2d 388 (1974).

       Court of Appeals of Indiana | Opinion 49A02-1506-CT-715 | May 4, 2016                             Page 7 of 15
[17]   Revised Code section 103-3 provides the following:


               (a)      Whenever in any chapter, article, division or section of
                        this Code, or of any ordinances amendatory thereof or
                        supplemental thereto:


                        (1)      The doing of any act, or the omission to do any act or
                                 to perform any duty, is declared to be a violation of this
                                 Code, or of any such amendatory or supplemental
                                 ordinance, or of any provision thereof, or is
                                 declared to be unlawful; and


                        (2)      If there shall be no fine or penalty otherwise specifically
                                 prescribed or declared for any such violation, or for doing
                                 or for omitting to do any such act or to perform any
                                 such duty;


               any person found to have committed any such violation shall be
               fined, by way of a penalty therefor, an amount not exceeding any
               limitation under IC 36-1-3-8 for each such violation, act or
               omission


       (emphases added). That statute sets a maximum limit of $2,500 that any

       political unit may levy as a fine for the violation of most ordinances. Ind. Code

       § 36-1-3-8(a)(10)(A).


[18]   The code does, however, have a fine specifically prescribed for the violation of

       parking at an expired meter: the civil penalty is $20. Revised Code § 103-52.

       Anyone receiving a citation is required to appear before the ordinance

       violations bureau to admit or deny the violation within seven days. Id. § 103-

       57. In this context “payment of the designated civil penalty within seven days

       Court of Appeals of Indiana | Opinion 49A02-1506-CT-715 | May 4, 2016               Page 8 of 15
       of the date of the issuance of the citation . . . shall be deemed an admission of

       the violation,” which also satisfies the duty to appear. Id. If a violation is

       “admitted” more than seven days after the citation is issued, the fine either

       doubles or increases by $25, whichever is lower. Id. § 103-53.


[19]   But even if there is a fine specifically prescribed for a violation, an offender

       might find herself subject to the general penalty of up to $2,500. “The civil

       penalties specified in this article shall apply only to violations admitted . . . and

       shall be considered offers in compromise. If administrative or judicial

       proceedings are initiated for such violation, the specific penalties for such

       violation or the general penalties of the Code shall be applicable to the

       violation.” Id. § 103-60. Administrative or judicial proceedings may be brought

       if the person served with a citation does any of the following three things: 1)

       makes an appearance but denies the violation; 2) fails to appear within ten days

       of the citation; or 3) fails to pay the specified civil penalty within seven days

       after admitting the violation. Id. § 103-74(a).


[20]   The Revised Code does not specify when a fine is considered “paid.” At the

       March 19, 2015, hearing, Gilday analogized the issue to the payment of taxes,

       and noted that Indiana’s Department of Revenue considers a document to be

       timely filed if there is reasonable evidence that the document was deposited in

       the mail on or before the due date. Ind. Code § 6-8.1-6-3(a)(1). The City

       countered with a different interpretation: “our position is that the City is

       entitled to determine when a payment is received. . . . And it’s our position that

       the City is entitled to determine when payment is made.” Tr. p. 30-31.

       Court of Appeals of Indiana | Opinion 49A02-1506-CT-715 | May 4, 2016       Page 9 of 15
[21]   As an issue of first impression, we hold that payment is made on a parking

       ticket when the payor deposits the payment in the mail. The issue is too

       important to allow the City to determine for itself when it believes a payment

       was made: any delay on the City’s end could result in a 12,400% increase in the

       fine assessed for a parking violation. We believe that the ordinary citizen

       would believe that she was paying a ticket at the moment she sent the payment,

       not when the City determines she paid. If the term is ambiguous, the ambiguity

       should accrue to the advantage of the citizen, who could not predict which of

       multiple meanings the City intended, and to the disadvantage of the City that

       drafted the ordinance.


[22]   The City argues that the term “paid” is not ambiguous, and that it means

       “receiving pay.” Webster’s New Twentieth Century Unabridged Dictionary

       1285 (2d ed. 1983). But the City gets the word “paid” from the ticket it wrote to

       Gilday, not from the Revised Code. The law must be as it is written in the

       duly-adopted ordinances, not as it is portrayed in a parking officer’s ticket. The

       ordinances either refer to “payment,” Revised Code § 103-57, or a person who

       “fails to pay.” Id. at § 103-59; 103-74. The definition of “payment” is “an act,

       or the action or process, of paying.” The New Shorter Oxford English

       Dictionary 2130 (1993). “Pay” is defined variously as “give” or “hand over or

       transfer.” Id. at 2129. The City is perhaps correct that there is no ambiguity

       here—but only in that the ordinances unambiguously support Gilday’s position.


[23]   The City has misplaced Gilday’s envelope, which might have contained a

       postmark noting the date it was placed in the mail. As the record stands, the

       Court of Appeals of Indiana | Opinion 49A02-1506-CT-715 | May 4, 2016   Page 10 of 15
       only evidence offered to establish the date Gilday placed his payment in the

       mail is the date he placed on the check, October 26, 2012, and his testimony

       that he mailed it on that day. The City has put forth no evidence contradicting

       this, and therefore this factual issue is not genuinely disputed—Gilday made his

       payment six days after receiving the citation.


[24]   Because his payment was made within seven days of the citation, his payment

       constituted an admission. Revised Code § 103-57. Because he admitted within

       seven days of the citation, there was no legal authority by which he could be

       assessed the late fee. Id. § 103-53. Since the payment also satisfied the duty to

       appear within ten days, the City had no legal authority to initiate an

       administrative hearing. Id. § 103-74(a).


[25]   In sum, Gilday paid his fine within seven days, and cannot be held liable for

       any additional payment. Therefore, we reverse the trial court’s grant of

       summary judgment on this issue, and find that summary judgment should have

       been granted to Gilday on this issue.


                                      II. The Original Ticket
[26]   Gilday offers a number of arguments for why he should not have had to pay the

       original ticket. He points out that it is unlawful for a person to knowingly fail

       to comply with a lawful order of a law enforcement officer. Ind. Code § 9-21-8-

       1. A police officer directed him away from his normal parking spot. He

       believes, therefore, that he had a legal excuse to not pay for metered parking.



       Court of Appeals of Indiana | Opinion 49A02-1506-CT-715 | May 4, 2016    Page 11 of 15
[27]   Gilday is wrong. He might have had an argument if a policer officer ordered

       him to park and leave his car at an expired meter. This is not what happened.

       Gilday was unable to get to his parking spot, and so he—in an act of free will—

       parked in a metered spot without paying. The Revised Code, clearly and

       unambiguously, declares this unlawful and sets the penalty at $20. Gilday’s

       argument to the contrary is unavailing.


                           III. Driver’s Privacy Protection Act
[28]   The DPPA prohibits the disclosure of personal information from a motor

       vehicle record in certain circumstances. 18 U.S.C. § 2721(a). This applies to “a

       State department of motor vehicles,” but also prevents disclosure by “an

       authorized recipient of personal information” from the department. Id. §

       2721(c). Personal information is defined as “information that identifies an

       individual, including an individual’s photograph, social security number, driver

       identification number, name, address, telephone number, and medical or

       disability information.” Id. § 2725(3).


[29]   There is no physical evidence in the record to indicate that any such

       information was disclosed; but Gilday testified that the ticket he found on his

       car had his name and address, and claims that the City destroyed that portion of

       the ticket. For the purposes of summary judgment, we will assume that the

       ticket had Gilday’s name and address.


[30]   Even if we do so, we find that the City did not violate the DPPA. The statute

       contains multiple exceptions to the general prohibition against disclosure. One

       Court of Appeals of Indiana | Opinion 49A02-1506-CT-715 | May 4, 2016   Page 12 of 15
       exception is “[f]or use in connection with any civil, criminal, administrative, or

       arbitral proceeding in any Federal, State or local court or agency or before any

       self-regulatory body, including the service of process. . . .” 18 U.S.C. §

       2721(b)(4). The Seventh Circuit, in a case factually indistinguishable from the

       present one, explained that law enforcement has good reasons to disclose some

       personal information on a parking ticket, and that “[t]he balance between law

       enforcement and privacy favors allowing discreet disclosure of limited

       information of credible value to law enforcement, since the potential harm of

       such disclosure is negligible but the benefits nonnegligible.” Senne v. Village of

       Palatine, 784 F.3d 444, 448 (7th Cir. 2015) (finding that a parking ticket did not

       violate the DPPA, even where ticket included person’s name, date of birth, sex,

       height, weight, driver’s license number, and address), cert. denied, 136 S.Ct. 419

       (2015).


[31]   For all the reasons that the disclosures in the Senne case were “for use in

       connection with” a judicial proceeding, so were the alleged disclosures in this

       case. Therefore, even granting the truth of everything Gilday claims, there was

       no violation of the DPPA, and summary judgment was properly granted to the

       City on this issue.


                                               IV. Sanctions
[32]   Gilday argues that the City should have been sanctioned by the trial court. He

       points to the difficulty of obtaining the record, and of the various deficiencies of

       the various versions of the record he obtained. He argues that the City should


       Court of Appeals of Indiana | Opinion 49A02-1506-CT-715 | May 4, 2016     Page 13 of 15
       have produced the record, and that there was never a proper record because the

       City did not create a certified transcript of the audio recording it provided.


[33]   Gilday’s argument is unavailing.


               We assign the selection of an appropriate sanction for a discovery
               violation to the trial court’s sound discretion. Trial judges stand
               much closer than an appellate court to the currents of litigation
               pending before them, and they have a correspondingly better
               sense of which sanctions will adequately protect the litigants in
               any given case, without going overboard, while still discouraging
               gamesmanship in future litigation. We therefore review a trial
               court’s sanction only for an abuse of its discretion.


       Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind. 2012) (citations omitted).


[34]   We certainly sympathize with Gilday’s struggle to get a proper record, and we

       believe the trial court was correct in not dismissing his claim for lack of a record

       that he could not obtain. But we cannot find any behavior on the part of the

       City that a trial court would be compelled to sanction.


[35]   The strongest allegation Gilday makes against the City is that it failed to

       comply with a June 14, 2014, court order to produce a record of the Hearing—

       but the City did produce the audio recording, which comports with the

       description of the administrative hearing contained in Revised Code section

       103-78(5). The trial court was certainly within its discretion to find that

       sanctions were not appropriate.




       Court of Appeals of Indiana | Opinion 49A02-1506-CT-715 | May 4, 2016     Page 14 of 15
                                                 Conclusion
[36]   The undisputed evidence shows that Gilday paid his fine within seven days;

       therefore, the City could not add a late fee, hold an administrative hearing

       regarding his violation, or seek a default judgment against him. Gilday is not

       correct that he had a legal excuse to park at the meter, or that the City violated

       the Driver’s Privacy Protection Act. Finally, the trial court was within its

       discretion to not sanction the City.


[37]   We reverse the trial court’s grant of summary judgment regarding the default

       judgment, and remand with instructions to enter summary judgment in favor of

       Gilday on this count. In all other respects, the judgment of the trial court is

       affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1506-CT-715 | May 4, 2016    Page 15 of 15
