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Monday, November 14, 2005

Ind. Decisions - Court of Appeals issues BMV decision; more

In Joel Silverman, Commissioner of Indiana Bureau of Motor Vehicles v. Richard Fifer, issued today, Judge Friedlander writes:

Joel Silverman, in his capacity as the Commissioner of the Indiana Bureau of Motor Vehicles (the BMV), appeals an order of the trial court ordering the BMV to issue a restricted driver’s license to Richard Fifer, who is employed as a truck driver. The BMV contends the trial court’s order was in violation of federal law and thus erroneous. We reverse.

We note at the outset that this case involves an appeal of an order to issue a hardship license while Fifer’s operator’s license was suspended. Fifer’s operator’s license, and thus, presumably, his commercial driver’s license (CDL), were reinstated during the pendency of this appeal. Therefore, the question is moot as to this particular controversy. We agree with the BMV, however, that this case is liable to recur and involves issues related to public safety. In such cases, we may, at our discretion, make an exception to the mootness doctrine and address the merits of the case. We opt to do that here. * * *

The question before us, then, is whether the trial court may order the BMV to grant a hardship license that functions as a CDL, but is not so labeled. We think it indisputable that a – if not the – primary purpose of the Commercial Motor Vehicle Safety Act is highway safety. See Center for Auto Safety, Inc. v. Nat’l Highway Traffic Safety Admin., 342 F.Supp.2d 1 (App. D.C. 2004). The purpose of forbidding the issuance of a CDL to a person whose license is suspended under the enumerated circumstances has nothing to do with the official designation of the license itself, and everything to do with preventing that person from operating a commercial motor vehicle when it might be dangerous to do so. Thus, irrespective of labels and terminology, 49 U.S.C. § 31311 should be interpreted as a prohibition against the issuance of any license, however designated, that would authorize a person to operate a commercial motor vehicle under the circumstances set out in 49 U.S.C. § 31311.3 The trial court’s order in the instant case was erroneous.

Also today the Court of Appeals issued two sentencing decisions (one on rehearing); a 26-page appeal of a dissolution order (including a dissent); and Fox Development, Inc. v. Michael England, an opinion by Judge Najam, involving the question of an oral contract for the purchase of realty:
The issue, then, is whether Fox was required to plead an exception to the statute of frauds in order to survive a motion for judgment on the pleadings. Because this case presents an issue of first impression in Indiana, we look to other jurisdictions for guidance. * * *

Fox’s complaint alleged an oral contract for the sale of real property, which on its face is unenforceable under the statute of frauds. Although no technical forms of pleading are required, see Indiana Trial Rule 8(E)(1), it was incumbent upon Fox to anticipate in the complaint, or to meet in an amended complaint, the Englands’ affirmative defense that the breach of contract claim was barred by the statute of frauds. Thus, to overcome the statute, the complaint or an amended complaint should have alleged exceptions to the statute of frauds in order to survive a motion for judgment on the pleadings. Thus, we hold that the trial court did not err when it granted judgment on the pleadings in favor of the Englands. Affirmed.

Posted by Marcia Oddi on November 14, 2005 11:37 AM
Posted to Ind. App.Ct. Decisions