FOR PUBLICATION                                            FILED
                                                         Nov 28 2012, 10:21 am


                                                                CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court



ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

ADAM J. SEDIA                                 GREGORY F. ZOELLER
Rubino, Ruman, Crosmer & Polen                Attorney General of Indiana
Dyer, Indiana
                                              ELIZABETH ROGERS
                                              Deputy Attorney General
                                              Indianapolis, Indiana



                             IN THE
                   COURT OF APPEALS OF INDIANA

RICHARD THOMAS,                               )
                                              )
      Appellant-Petitioner,                   )
                                              )
             vs.                              )        No. 64A03-1204-PL-191
                                              )
INDIANA BUREAU OF MOTOR VEHICLES,             )
                                              )
      Appellee-Respondent.                    )


                   APPEAL FROM THE PORTER SUPERIOR COURT
                        The Honorable Mary R. Harper, Judge
                           Cause No. 64D05-1201-PL-812



                                   November 28, 2012


                              OPINION - FOR PUBLICATION


BRADFORD, Judge
       Approximately three and one-half years after receiving his third qualifying driving

conviction within a ten-year period, Richard Thomas received notice from the Indiana

Bureau of Motor Vehicles that, pursuant to Indiana Code section 9-30-10-4(b), he qualified

as a habitual traffic violator, and, as a result, that his driving privileges would be suspended

for a period of ten years. Thomas requested relief on administrative review. This request

was denied. Thomas subsequently filed a petition for judicial review of the Bureau’s

determination claiming that the Bureau did not notify him of its determination regarding his

status as a habitual traffic violator in a timely fashion. The trial court found against Thomas,

concluding that the relevant statutory provisions did not set forth an applicable statute of

limitation for imposing habitual traffic violator status, and that it did not have the power to

impose any such statute of limitation.

       On appeal, Thomas contends that the trial court erred by concluding that the Bureau’s

notice regarding his status as a habitual traffic violator was timely. Thomas alternatively

claims that even if the notice was timely, the suspension of his driving privileges should be

barred by the doctrine of laches. Concluding that the Bureau timely notified Thomas that he

qualified as a habitual traffic violator and that the doctrine of laches is inapplicable to the

instant matter, we affirm.

                        FACTS AND PROCEDURAL HISTORY

       On February 6, 2001, Thomas was convicted of operating a motor vehicle while

intoxicated. On January 3, 2008, Thomas was convicted of reckless driving. On May 13,

2008, Thomas was convicted of operating while intoxicated endangering a person. The May



                                               2
13, 2008 conviction qualified Thomas as a habitual traffic violator (“HTV”) under Indiana

Code section 9-30-10-4(b). On December 23, 2011, the Indiana Bureau of Motor Vehicles

(“BMV”) notified Thomas that he qualified as an HTV, and, as a result, that his driving

privileges would be suspended for ten years, effective January 12, 2012, through January 24,

2022.

        Thomas requested an administrative review of the determination that he qualified as

an HTV. The BMV conducted an administrative review, after which it affirmed Thomas’s

HTV qualification as well as the suspension of his driving privileges. Thomas thereafter

filed a petition for judicial review of the BMV’s decision. The trial court conducted a

hearing on April 9, 2012, after which it denied Thomas’s petition for judicial review. This

appeal follows.

                              DISCUSSION AND DECISION

                In reviewing a decision of an administrative agency, we are bound by
        the same standard of review as the trial court. Hopkins v. Tipton County
        Health Dep’t, 769 N.E.2d 604, 607 (Ind. Ct. App. 2002) (citing Holmes v. Bd.
        of Zoning Appeals, 634 N.E.2d 522, 524 (Ind. Ct. App. 1994)). Judicial review
        of an administrative decision is limited to whether the agency possessed
        jurisdiction over the subject matter, whether the decision was made pursuant to
        the proper procedures, whether the decision was arbitrary and capricious,
        whether the decision was in violation of any constitutional, statutory, or legal
        principles, and whether the decision was supported by substantial evidence.
        Ripley County Bd. of Zoning Appeals v. Rumpke of Ind., Inc., 663 N.E.2d 198,
        203 (Ind. Ct. App. 1996).

Ind. Bureau of Motor Vehicles v. McNeil, 931 N.E.2d 897, 900 (Ind. Ct. App. 2010), trans.

denied. Because the issue presented in the instant matter is a question of law, our standard of




                                               3
review is de novo. Hopkins, 769 N.E.2d at 607 (citing Holmes, 634 N.E.2d at 524). We will

reverse only if an error of law is demonstrated. Id. (citing Holmes, 634 N.E.2d at 524).

                                A. Statute of Limitations

       Thomas contends that the BMV’s notice regarding his driving status and the resulting

suspension of his driving privileges was untimely. Thomas argues that a statutory limitation

period should apply to determinations by the BMV regarding HTV status. Thomas, however,

does not clearly state what statutory limitation period should apply to determinations

regarding HTV status. Thomas acknowledges that this court has previously held that the

two-year limitation period set forth by Indiana Code section 34-11-2-4 does not apply to

BMV determinations regarding HTV status, McNeil, 931 N.E.2d at 902, but argues that the

general ten-year limitation period set for by Indiana Code section 34-11-1-2 should not apply.

Specifically, Thomas claims that the general ten-year limitation period should not apply

because a ten-year delay in notifying one of his status as an HTV and the resulting

suspension of his driving privileges transforms the suspension from a regulatory to a punitive

measure.

       In McNeil, appellant was notified approximately two years after receiving his third

qualifying driving conviction that the BMV had determined that he qualified as an HTV, and,

as a result, his driving privileges would be suspended for ten years. Id. at 900. Appellant

sought judicial review of the BMV’s determination, claiming that the two-year statute of

limitation that applied to actions for forfeitures should apply to determinations regarding

one’s status as an HTV and that the BMV had failed to provide him with timely notice of its



                                              4
determination regarding his HTV status. Id. Upon review, we concluded that “the

determination of HTV status and the suspension of one’s driving privileges by the BMV is

not an action for ‘a forfeiture of penalty given by statute,’ and the two-year statute of

limitations under Indiana Code section 34-11-2-4 does not apply.” Id. at 902. We further

concluded that while the appellant raised several policy issues in support of the application of

a statute of limitation for determinations made by the BMV, it is for the General Assembly to

determine what, if any, statute of limitations applies and “they [had] not deemed to do so thus

far.” Id.

       It does not appear that the General Assembly has amended Indiana Code section 9-30-

10 to include a statute of limitation since our 2010 decision in McNeil. However, the Indiana

Supreme Court has recently held that the General Assembly enacted the general ten-year

statute of limitation prescribed in Indiana Code section 34-11-1-2 “for the very purpose of

supplying a statute of limitation when one has not otherwise been provided by a more

specific statutory scheme.” Ind. Spine Group, PC v. Pilot Travel Ctrs., LLC, 959 N.E.2d

789, 794 (Ind. 2011) (internal quotation omitted). Accordingly, in light of the Supreme

Court’s holding in Indiana Spine Group, we must assume that, until the General Assembly

provides otherwise, the general ten-year statute of limitation prescribed in Indiana Code

section 34-11-1-2 applies to claims relating to determinations by the BMV regarding HTV

status and the suspension of one’s driving privileges.

       Thomas additionally argues that even if the general ten-year statute of limitation

prescribed in Indiana Code section 34-11-1-2 does apply, the ten-year period should have



                                               5
begun to run from the date of his first qualifying conviction. We disagree. “When a cause of

action accrues is generally a question of law for the courts to determine.” Strauser v.

Westfield Ins. Co., 827 N.E.2d 1181, 1185 (Ind. Ct. App. 2005). “Under Indiana’s discovery

rule, a cause of action accrues, and the statute of limitation begins to run, when a claimant

knows or in the exercise of ordinary diligence should have known of the injury.” Pflanz v.

Foster, 888 N.E.2d 756, 759 (Ind. 2008). Thus, a statute of limitation cannot begin to run

until the elements of a cause of action can be shown. See generally id. at 758 (providing that

a claimant cannot recover before suffering actual damage).

        Indiana Code section 9-30-10-4(b) provides, in relevant part, that “[a] person who has

accumulated at least three (3) judgments within a ten (10) year period for any of the

[qualifying] violations,[1] singularly or in combination, and not arising out of the same

incident, is a habitual violator.” The clear language of Indiana Code section 9-30-10-4(b)

states that one does not qualify as an HTV until the individual receives his third qualifying

conviction. It would be illogical to begin to run the applicable statute of limitation before

one qualifies as an HTV because no loss has occurred. Thomas did not suffer damage, i.e.,

qualify as an HTV, until he received his third qualifying conviction in a ten-year period. As

such, we must conclude that the general ten-year statute of limitation prescribed in Indiana




        1
           The qualifying judgments include: (1) operation of a vehicle while intoxicated; (2) operation of a
vehicle with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per one
100 milliliters of the blood or 210 liters of the breath; (3) operating a motor vehicle while the person’s license
is suspended or revoked; (4) operating a motor vehicle without ever having obtained a license to do so; (5)
reckless driving; (6) criminal recklessness involving the operation of a motor vehicle; (7) drag racing or
engaging in a speed contest in violation of law; and (8) any felony under an Indiana motor vehicle statute or
any felony in the commission of which a motor vehicle is used.

                                                        6
Code section 34-11-1-2 did not begin to run until Thomas qualified as an HTV, i.e., the date

he “suffered harm” by qualifying as an HTV.

       In addition, we are unconvinced by Thomas’s claim that allowing the general ten-year

statute of limitation prescribed in Indiana Code section 34-11-1-2 to begin to run on the date

the individual qualifies as an HTV under 9-30-10-4(b) transforms the penalties one might

incur as a result of their status as an HTV from a regulatory to a punitive measure. As we

stated in McNeil, it is for the General Assembly, not the judiciary, to decide if a shorter

limitations period is appropriate in circumstances like those presented in the instant matter.

See McNeil, 931 N.E.2d at 902. The General Assembly has not done so.

                                  B. Doctrine of Laches

       Thomas alternatively contends that even if the BMV did provide him with timely

notice of his status as an HTV, the ten-year suspension of his driving privileges should be

barred by the doctrine of laches. “‘The question of laches is one to be determined by the

court in the exercise of its sound discretion.’” Ind. Real Estate Comm’n v. Ackman, 766

N.E.2d 1269, 1273 (Ind. Ct. App. 2002) (quoting Simon v. City of Auburn, Ind., Bd. of

Zoning Appeals, 519 N.E.2d 205, 215 (Ind. Ct. App. 1988)). “‘For a decision to be reversed

on appeal, an abuse of discretion must be clearly demonstrated.’” Id. (quoting Simon, 519

N.E.2d at 215). “An abuse of discretion occurs only when the trial court’s conclusion and

judgment is clearly against the logic and effect of the facts and circumstances before the

court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Id. (citing

Taylor v. Metro. Dev. Comm’n, 436 N.E.2d 1157 (Ind. Ct. App. 1982)).



                                              7
               Laches is an equitable defense that may be raised to stop a person from
       asserting a claim that he would normally be entitled to assert. Storm, Inc. v.
       Indiana Dep’t of State Revenue, 663 N.E.2d 552 (Ind. Tax Ct. 1996). The
       rationale behind the doctrine of laches is that a person who, for an
       unreasonable length of time, has neglected to assert a claim against another
       waives the right to assert his claim when this delay prejudices the person
       against whom he would assert it. Id. We acknowledge that equitable defenses,
       such as laches, typically may not be asserted against the government when it
       acts in its sovereign capacity to protect the public welfare. See U.S. v. Wedzeb,
       809 F.Supp. 646 (S.D. Ind. 1992), Harbour Town Associates, Ltd. v. City of
       Noblesville, 540 N.E.2d 1283 (Ind. Ct. App. 1989) (holding that the doctrine of
       laches is never applicable to a municipality in enforcing its ordinances because
       of public policy interests).

Ackman, 766 N.E.2d at 1273. However, while we have concluded that the doctrine should

not be permitted to frustrate the enforcement of a valid regulation where government acts to

protect the public welfare except for in the clearest and most compelling circumstances, we

recognize that “[u]nder certain conditions, where extreme unfairness is shown, a court may

apply equitable principles against the government.” Id. (citing U.S. v. Lindberg Corp., 882

F.2d 1158 (7th Cir. 1989)). “Extreme unfairness occurs where the public interest would be

threatened by the government’s conduct.” Id. (citing Hannon v. Metro. Dev. Comm’n of

Marion Cnty., 685 N.E.2d 1075 (Ind. Ct. App. 1997)).

       In arguing that the doctrine of laches should apply to the instant matter, Thomas

claims that a ten-year suspension of his driving privileges would result in extreme unfairness

because in the years since his last qualifying conviction, he has “altered his behavior to

effectively render himself a safe driver.” Appellant’s Br. p. 16. However, we are

unconvinced by Thomas’s self-serving statement regarding his belief that he has altered his

behavior in a manner such to render him a “safe driver,” and conclude that it falls far short of



                                               8
demonstrating that the public interest would be threatened by the BMV’s conduct in the

instant matter. See Ackman, 766 N.E.2d at 1273 (again providing that extreme unfairness

occurs where the public interest would be threatened by the government’s conduct).

Thomas’s qualifying convictions include convictions for operating a vehicle while

intoxicated, reckless driving, and operating a vehicle while intoxicated endangering a person.

Despite Thomas’s claim to the contrary, we believe that the public interest would likely be

served, not threatened, by the ten-year suspension of Thomas’s driving privileges. Because

the extremely limited circumstances which would allow for its application are not present in

this case, we conclude that the doctrine of laches is inapplicable to the instant matter.

       The judgment of the trial court is affirmed.

ROBB, C.J., and BAKER, J., concur.




                                              9
