MATHIAS, Judge.
The Indiana Bureau of Motor Vehicles ("BMV") appeals the order of the Marshall Superior Court granting a petition for judicial review filed by Jennifer M. Gurtner ("Gurtner") after her license was suspended for failure to provide proof of financial responsibility following an automobile accident. On appeal, the BMV claims that the trial court was without authority to grant the petition because the controlling statute provides the trial court with no discretion to overturn the suspension. Concluding that Gurtner did not adequately avail herself of the available statutory remedies, we reverse.
The parties do not dispute the relevant facts of this case. On April 24, 2014, Gurtner was driving a vehicle owned by her and her husband when she struck a deer. Gurtner's car was damaged, and she reported the incident to the police. Following the accident, the BMV notified her that she was required to provide proof of financial responsibility, i.e., automobile insurance, at the time of the accident. Gurtner and her husband thought they had paid for automobile insurance on all of their vehicles, but because of a mistake on the part of Gurtner's insurance agent, the
On June 12, 2014, Gurtner filed a verified petition for judicial review, seeking to challenge the BMV's suspension of her license. The trial court held a hearing on the matter on June 30, 2014, and orally granted Gurtner's petition at the conclusion of the hearing. The trial court entered a written order granting Gurtner's petition on July 2, 2014, which provides in relevant part:
Appellant's App. p. 10. The BMV now appeals.
The State claims that we should review the trial court's order and that the trial court should have reviewed the BMV's order under the Administrative Orders and Procedures Act ("AOPA"), Indiana Code article 4-21.5.
Whatever can be said about the petition for judicial review called for in Indiana Code section 9-25-6-16, we know
Here, the relevant statutes clearly required Gurtner to present to the BMV evidence that she had insurance:
Ind.Code § 9-25-5-2 (emphasis added).
Section 4 of this chapter provides, "[t]o avoid suspension of driving privileges," a person who receives such a request for financial responsibility "must ensure that the insurance company of the person provides the bureau with a certificate of compliance indicating that financial responsibility required by IC 9-25-4-1 was in effect with respect to the motor vehicle, or the operation of the motor vehicle, on the date of the accident described in the accident report." Ind.Code § 9-25-5-4. Moreover, it is the responsibility of the person who receives such a request for proof of financial responsibility "to ensure that the insurance company of the person has provided a certificate of compliance." Id.
The penalty for failure to provide the BMV with such a certificate of compliance is set forth in Section 9-25-6-3:
(a) If the bureau:
Ind.Code § 9-25-6-3 (emphasis added).
Thus, the plain language of the statutes at issue required the BMV to suspend Gurtner's license because, regardless of fault, she could not provide proof of financial responsibility at the time of the accident due to the undisputed fact that the car she was driving at the time of the accident was not covered by her insurance carrier. See Spencer v. Spencer, 990 N.E.2d 496, 497 (Ind.Ct.App.2013) ("The use of the word `shall' in a statute `generally connotes a mandatory as opposed to a discretionary import.'") (quoting Parmeter v. Cass Cnty. Dep't of Child Services, 878 N.E.2d 444, 447 (Ind.Ct.App.2007)).
Gurtner admits that the relevant statute required that her license be suspended. She claims, however, that the BMV denied her due process by failing to provide for a system of administrative review. The State argues that we should not consider Gurtner's due process argument because she did not present this issue to the trial court. Accordingly, we address the State's claim of waiver before addressing the merits of Gurtner's claim.
It has long been the general rule in Indiana that an argument or issue presented for the first time on appeal is waived for purposes of appellate review. See, e.g., Plank v. Cmty. Hospitals of Ind., Inc., 981 N.E.2d 49, 53 (Ind.2013) ("[A]ppellate review presupposes that a litigant's arguments have been raised and considered in the trial court."); Ind. Dep't of Envtl. Mgmt. v. Raybestos Prods. Co., 897 N.E.2d 469, 474 (Ind.2008) ("Generally, an appellate court will not review an issue that was not presented to the trial court."), corrected on reh'g, 903 N.E.2d 471 (Ind. 2009); Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind.2000) ("A party may not raise an issue for the first time in a motion to correct error or on appeal."); Franklin Bank & Trust Co. v. Mithoefer, 563 N.E.2d 551, 553 (Ind.1990) ("A party cannot change its theory and on appeal argue an issue which was not properly presented to the trial court."); Indianapolis Newspapers, Inc. v. Fields, 254 Ind. 219, 260, 259 N.E.2d 651, 670 (1970) ("We do not review issues presented for the first time on appeal except to avoid grave injustice.").
As we explained in GKC Indiana Theatres v. Elk Retail Investors, LLC:
764 N.E.2d 647, 651 (Ind.Ct.App.2002) (citations omitted). Even though this rule is more often applied to appellants — as the parties seeking to reverse the judgment of the trial court — it has also been held to
More recently, however, our supreme court has signaled a shift away from this rule, at least as far as appellees are concerned. In Citimortgage v. Barabas, 975 N.E.2d 805, 813 (Ind.2012), the court stated that a party who has prevailed at the trial court, i.e., the appellee, "may defend the trial court's ruling on any grounds, including grounds not raised at trial." Again, in Drake v. Dickey, 12 N.E.3d 875, 875 (Ind.2014), the court cited Citimortgage in support of its holding that "[t]he Appellate Rules do not require the filing of a cross appeal where the appellee does not seek reversal of the order or judgment appealed but instead raises a ground for affirming that appears in the record and was rejected or not considered by the trial court or agency." Id. at 875 (citing Citimortgage, 975 N.E.2d at 813).
Under Citimortgage, an appellant may not present an argument that was not presented to the trial court, but this limitation does not apply to an appellee who seeks to affirm the trial court's judgment. This rule is consistent with the presumption in all appeals that a trial court's judgment is correct as well as the general rule that on appeal we will affirm a judgment on any theory supported by the record. See J.M. v. Review Bd. of Ind. Dep't of Workforce Dev., 975 N.E.2d 1283, 1289 (Ind.2012) ("on appellate review the trial court's judgment will be affirmed if sustainable on any theory or basis found in the record."). Thus, we cannot say that Gurtner failed to preserve her due process argument by failing to present it to the trial court.
Moreover, when it comes to questions of constitutional dimension, Indiana appellate courts have long exercised discretion to address the merits of constitutional claims even when not properly preserved. Plank v. Cmty. Hospitals of Ind., Inc., 981 N.E.2d 49, 53 (Ind.2013). Accordingly, "appellate courts are not prohibited from considering the constitutionality of a statute even though the issue otherwise has been waived. And indeed a reviewing court may exercise its discretion to review a constitutional claim on its own accord." Id. at 53-54.
We also conclude that the "futility exception" to the exhaust any administrative remedies rule is applicable. The exhaustion of administrative remedies may be excused if the exercise would be futile. Johnson v. Celebration Fireworks, Inc., 829 N.E.2d 979, 984 (Ind.2005). To prevail upon a claim of futility, one must show that the administrative agency was powerless to effect a remedy or that it would have been impossible or fruitless and of no value under the circumstances. Id. Here, the BMV admits that it was powerless to effect a remedy because the statute requires the suspension of Gurtner's license. In short, we will address Gurtner's due process argument.
As set forth above, Indiana Code section 9-25-6-3 requires the BMV to suspend the license of a person who, regardless of fault, cannot provide proof of financial responsibility at the time of an accident. This much Gurtner admits. She claims, however, that she was denied due process because she was not afforded an opportunity to explain to the BMV that her license should not be suspended because the failure to maintain insurance coverage on her vehicle was not her fault.
In addressing Gurtner's claim, we note that driving a motor vehicle
Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971).
"The fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.'" McKinney v. McKinney, 820 N.E.2d 682, 688 (Ind.Ct. App.2005) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)).
As explained by the Supreme Court in Bell, "it is fundamental that except in emergency situations ... due process requires that when a State seeks to terminate an interest such as that here involved, it must afford notice and opportunity for hearing appropriate to the nature of the case before the termination becomes effective." 402 U.S. at 539, 91 S.Ct. 1586; see also Daniel E. Feld, Annotation, Necessity of Notice and Hearing Before Revocation or Suspension of Motor Vehicle Driver's License, 60 A.L.R.3d 361 (1974). Here, nothing indicates that this was an emergency situation. Thus, pursuant to Bell, the State must afford a driver such as Gurtner an opportunity for a hearing appropriate to the nature of the case before the termination becomes effective. Id.
A statutory provision is in place for review of the suspension of a driver's license for failure to provide proof of financial responsibility. Indiana Code section 9-25-6-16 states:
Subsections 16(a) and (b) provide for a documentary review but not a hearing. Thus, Gurtner's only means of obtaining a hearing regarding the suspension of her
Gurtner argues that the BMV should have afforded her the opportunity to request a hearing at which she could have presented her defense, i.e., her claim that her failure to maintain proof of financial responsibility was not her fault. However, even if the BMV provided her with such an opportunity, it does not appear that the BMV would have been statutorily authorized to disregard the clear language of the statute and not suspend Gurtner's license. Gurtner's complaint is essentially that the statute is unfair; but the BMV is required to apply the relevant statute whether or not it results in a perceived unfairness in a particular case.
The State argues that the provision for judicial review under IC 9-25-6-16(d) is adequate to address any due process concerns. However, when judicial review occurs after the suspension called for in Indiana Code section 9-25-6-3, such post-suspension review does not provide adequate due process; instead, post-suspension judicial review comports with due process only if the effectiveness of the suspension is stayed pending the judicial hearing. Jennings v. Mahoney, 404 U.S. 25, 26-27, 92 S.Ct. 180, 30 L.Ed.2d 146 (1971); see also Wollenburg v. Conrad, 246 Neb. 666, 522 N.W.2d 408, 412 (1994) (holding that lack of administrative hearing before suspension of license did not deny driver due process where suspension was stayed during judicial review and driver had opportunity to present evidence and cross-examine witnesses at judicial hearing prior to final suspension of license).
Here, the BMV suspended Gurtner's license before the petition for judicial review could be heard. However, Gurtner failed to request any stay of the suspension of her license. Perhaps more importantly, neither did she request a "hardship" license. At the time Gurtner's suspension was pending, Indiana Code section 9-24-15-1(1)
This case sets forth facts that were not really contemplated by the licensure statutes in effect at the time. Gurtner and the trial judge involved did the best they could do under unusual circumstances. That said, Gurtner failed to take advantage of the existing statutory remedies that would have provided her with an opportunity to explain why her failure to maintain financial responsibility was not her fault. Accordingly, we cannot say that the suspension of her license was accomplished without adequate due process.
Reversed.
NAJAM, J., and BRADFORD, J., concur.