      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
                                                                                           FILED
      this Memorandum Decision shall not be                                        Aug 04 2020, 9:42 am

      regarded as precedent or cited before any                                            CLERK
                                                                                       Indiana Supreme Court
      court except for the purpose of establishing                                        Court of Appeals
                                                                                            and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Bart M. Betteau                                          Curtis T. Hill, Jr.
      Betteau Law Office, LLC                                  Attorney General of Indiana
      New Albany, Indiana
                                                               Courtney L. Abshire
                                                               Aaron T. Craft
                                                               Deputy Attorneys General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jeremy R. Sims,                                          August 4, 2020
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               19A-MI-2796
              v.                                               Appeal from the Floyd Superior
                                                               Court
      Indiana Bureau of Motor                                  The Honorable James B. Hancock,
      Vehicles,                                                Judge
      Appellee-Respondent.                                     Trial Court Cause No.
                                                               22D02-1904-MI-615



      Mathias, Judge.


[1]   The Floyd Superior Court granted specialized driving privileges (“SDP”) to

      Jeremy R. Sims for a period in excess of what was then permitted under

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-2796 | August 4, 2020                           Page 1 of 9
      Indiana Code section 9-30-16-3. Upon the court’s grant of a motion to correct

      error filed by the Bureau of Motor Vehicles (“BMV”), the court amended its

      order. Sims’s subsequent motion to correct error was denied after hearing. Sims

      now appeals and presents four issues for our review, which we consolidate and

      restate as whether the BMV is authorized to file a motion to correct error after

      specialized driving privileges are granted without objection by the prosecuting

      attorney.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In April 2019, Sims filed a petition for SDP pursuant to Indiana Code section 9-

      30-16-3. His petition complied with the applicable statutory requirements,

      including that it named the BMV and the prosecuting attorney as parties. See

      I.C. § 9-30-16-3(b). The petition did not, however, specify a proposed expiration

      date for the requested SDP, and the chronological case summary indicates that

      a prosecuting attorney did not file an appearance. Appellant’s App. p. 2. The

      trial court stayed Sims’s driving suspension and granted his petition for SDP

      without hearing on June 6, 2019. The specialized driving privileges were to

      expire on December 11, 2028.


[4]   On July 8, 2019, the BMV, by the Attorney General, filed an appearance and

      submitted a motion to correct error, asserting that the trial court’s order was

      contrary to law. Specifically, the BMV cited subsection (c) of the SDP statute,



      Court of Appeals of Indiana | Memorandum Decision 19A-MI-2796 | August 4, 2020   Page 2 of 9
      which limits the duration of SDP when granted to two and one-half years.1 The

      BMV sought an amendment to the court’s order “to reflect [that the trial court]

      cannot grant Sims privileges past December 4, 2021.” Appellant’s App. p. 24.

      The trial court subsequently granted the BMV’s motion and amended the

      expiration date of Sims’s SDP from December 11, 2028, to December 4, 2021.


[5]   Sims filed a motion to correct error on August 5, 2019. His motion did not

      dispute that Indiana Code § 9-30-16-3(c) limits the duration of SDP to two and

      one-half years. Rather, Sims alleged that the Attorney General is statutorily

      prohibited from appearing in the action on the BMV’s behalf, based on the

      directive that “[a] prosecuting attorney shall appear on behalf of the bureau to

      respond to a petition filed under this subsection.” I.C. § 9-30-16-3(b). Sims

      argued that “the BMV is estopped from arguing against the judgment which is

      not contested by the Prosecuting Attorney.” Appellant’s App. p. 29.


[6]   The trial court set the matter for hearing, and following a hearing on October

      21, 2019, the trial court denied Sims’s motion to correct error.2 The trial court’s

      order read, in relevant part:


                      2. [T]he Attorney General’s office can represent the Bureau of
                      Motor Vehicles in this matter;




      1
        Public Law 29-2020, Sec. 2, effective July 1, 2020, has since amended I.C. § 9-30-16-3. Subsection (c) now
      allows for SDP to be granted “for a period of time as determined by the court” and no longer imposes a two-
      and-one-half-year durational limit on specialized driving privileges.
      2
          A transcript of the hearing on Sims’s motion to correct error is not included in the record on appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-MI-2796 | August 4, 2020                         Page 3 of 9
                   3. [T]he Court makes no ruling as to whether the Bureau of
                   Motor Vehicles waived the application of the two and one-
                   half year limitation because the Court has an obligation to
                   follow the law and must apply the two and one-half year
                   limitation.


      Id. at 39.


[7]   This appeal followed.


                                         Standard of Review
[8]   Generally, rulings on motions to correct error are reviewed only for abuse of

      discretion in recognition of the trial court’s “superior position to resolve

      disputed facts.” Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013). Where, as here,

      a motion to correct error depends on a matter of statutory interpretation, we

      review the trial court’s resolution of that question de novo. Id.


[9]   In interpreting a statute, we first determine whether the legislature has spoken

      clearly and unambiguously on the point in question. Rheem Mfg. Co. v. Phelps

      Heating & Air Conditioning, Inc., 746 N.E.2d 941, 947 (Ind. 2001). When a

      statute is clear and unambiguous, we need not apply any rules of construction

      other than to require that words and phrases be taken in their plain, ordinary

      and usual sense. Poehlman v. Feferman, 717 N.E.2d 578, 581 (Ind. 1999). It is

      only when a statute is susceptible to more than one interpretation that we deem

      it ambiguous and open to judicial construction. Amoco Production Co. v. Laird,

      622 N.E.2d 912, 915 (Ind. 1993).



      Court of Appeals of Indiana | Memorandum Decision 19A-MI-2796 | August 4, 2020   Page 4 of 9
                                      Discussion and Decision
[10]   Sims’s motion to correct error relied on the following provision of the law

       governing the availability of specialized driving privileges to Indiana drivers

       whose privileges have been suspended:


               (b) An individual who seeks specialized driving privileges must
               file a petition for specialized driving privileges in each court that
               has ordered or imposed a suspension of the individual’s driving
               privileges. Each petition must:


                   (1) be verified by the petitioner;


                   (2) state the petitioner’s age, date of birth, and address;


                   (3) state the grounds for relief and the relief sought;


                   (4) be filed in the court case that resulted in the order of
                   suspension; and


                   (5) be served on the bureau and the prosecuting attorney.


               A prosecuting attorney shall appear on behalf of the bureau to
               respond to a petition filed under this subsection.


       I.C. § 9-30-16-3.


[11]   Sims argues that the final provision of this subsection prohibits the Attorney

       General from contesting the trial court’s judgment on the BMV’s behalf,

       because “only” a prosecuting attorney may contest the trial court’s judgment in

       SDP cases. Appellant’s Br. at 7. The BMV counters that nothing in the statute
       Court of Appeals of Indiana | Memorandum Decision 19A-MI-2796 | August 4, 2020   Page 5 of 9
       prohibits the BMV from filing a motion to correct error in such cases.

       Furthermore, because the statute requires petitions for specialized driving

       privileges to name both the BMV and the prosecuting attorney as parties to the

       case, the BMV argues that its post-judgment appearance is proper and that filing

       a motion to intervene is unnecessary.


[12]   First, we reject Sims’s contention that the BMV is a “third party” to this action

       thus obligated to file a petition to intervene before it can be heard.3 Appellant’s

       Br. at 8. Sims’s petition for specialized driving privileges complied with Indiana

       Code section 9-30-16-3(b)(5), which clearly and unambiguously requires

       petitions for SDP to be served on the BMV. Accordingly, the BMV was a party

       to this case from its inception and may be heard without filing a motion to

       intervene.


[13]   Second, in its order denying Sims’s motion to correct error, the trial court held

       that the Attorney General’s representation of the BMV in the matter was

       proper. Appellant’s App. p. 39. Clear and unambiguous statutory authority

       supports this conclusion, too. Indiana Code section 9-30-16-3(b) directs

       prosecutors to appear on the BMV’s behalf in cases involving petitions for

       specialized driving privileges; the statute does not restrain the Attorney General




       3
         The BMV correctly notes that Sims raises this issue for the first time on appeal and thus has waived it for
       our review. See, e.g., In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016). We are unable to conduct a meaningful de
       novo review of the trial court’s denial of Sims’s motion to correct error, however, without addressing the
       BMV’s role in these cases, that is to say, as the administrative agency tasked with ensuring compliance with
       the law governing SDP in Indiana. Furthermore, this issue is likely to recur, and so we proceed to address the
       argument on its merits, waiver notwithstanding.

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-2796 | August 4, 2020                     Page 6 of 9
       from doing the same. Indiana Bureau of Motor Vehicles v. McClung, 138 N.E.3d

       303, 307 (Ind. Ct. App. 2019) (noting that the prosecutor appeared on the

       BMV’s behalf in a petition for SDP); Prosecuting Attorney v. Hammer, 92 N.E.3d

       649, 650 (Ind. Ct. App. 2017) (noting that the prosecutor appeared on the

       State’s and the BMV’s behalf in a petition for SDP).


[14]   Furthermore, Indiana Code section 4-6-1-6 provides that the Attorney General

       may “represent the state in any matter involving the rights or interests of the

       state. . . for which provision is not otherwise made by law.” Because the BMV

       is the state administrative agency responsible for ensuring compliance with

       Indiana laws that govern motor vehicles and the licensing of drivers, the

       Attorney General is charged to defend the BMV “in order to fulfill [its] duty to

       protect the State’s interests.” State ex rel. Sendak v. Marion County Superior Court,

       Room No. 2, 373 N.E.2d 145, 148 (1978). As is discussed, infra, the trial court’s

       initial order granting Sims’s petition for SDP was contrary to law; accordingly,

       the Attorney General’s appearance on behalf of the state agency charged with

       ensuring compliance with the law was entirely proper.


[15]   Nevertheless, Sims contends that the BMV is estopped from seeking an

       amendment to the trial court’s order because when the Attorney General filed

       an appearance on the BMV’s behalf, it was acting under the guise of a different

       governmental entity. Sims proposes that the BMV’s motion to correct error is

       an attack by one state agent (the BMV) against a judgment that was obtained

       with another state agent (the prosecuting attorney). Appellant’s Br. at 8 (citing

       Becker v. State, 992 N.E.2d 697 (Ind. 2013)). Again, the plain and ordinary

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-2796 | August 4, 2020   Page 7 of 9
       meaning of the statutory provision at issue belies Sims’s claim: in petitions for

       specialized driving privileges, the law directs a prosecuting attorney to “appear

       on behalf of the bureau.” I.C. § 9-30-16-3(b) (emphasis added).


[16]   Finally, we pick up where the trial court left off and hold that the BMV does not

       “waive” its ability to file a motion to correct error following a grant of

       specialized driving privileges that is contrary to law. See Appellant’s App. p. 29.

       Sims argues that a “two-tier litigation process” resulted when the BMV filed a

       motion to correct error after the trial court issued its order without objection

       from the prosecuting attorney. Appellant’s Br. at 7. In his view, the BMV

       “overrule[d]” the prosecuting attorney’s decision by lodging “its own

       independent objection” to the issuance of specialized driving privileges. Id.


[17]   This court recently explained in McClung that filing a motion to correct error is

       the BMV’s “appropriate course of action” after a trial court enters an order for

       SDP that the BMV believes is contrary to law. 138 N.E.3d at 307. Here, when

       Sims’s petition was before the trial court, no objection was raised because the

       BMV did not then—and does not now—object to a stay of Sims’s driving

       suspension and issuance of specialized driving privileges to him. See Appellant’s

       App. p. 15 (trial court order stating “Prosecuting Attorney does not object to

       the granting of Specialized Driving Privileges”). Rather, the BMV objects to

       grants of specialized driving privileges that exceed the statutory two-and-one-

       half-year cap, as Sims’s did. Accordingly, pursuant to Ind. Trial Rule 59, the

       BMV properly sought an amendment to the trial court’s order by filing a

       motion to correct error after the order was entered and the durational error

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-2796 | August 4, 2020   Page 8 of 9
       became known. The trial court did not err when it granted the BMV’s motion to

       correct error and amended its order issuing specialized driving privileges to

       Sims to ensure that the duration of those privileges complied with the

       applicable law.


                                                 Conclusion
[18]   Because the trial court’s initial grant of specialized driving privileges to Sims

       was contrary to law, the BMV properly filed a motion to correct the error in the

       trial court’s judgment, and the trial court duly amended the duration of Sims’s

       specialized driving privileges. There was no error in the trial court’s subsequent

       denial of Sims’s motion to correct error because the BMV is statutorily

       authorized to seek amendment to orders for SDP that are contrary to law.


[19]   Affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-MI-2796 | August 4, 2020   Page 9 of 9
