Centex Home Equity Corp. v. Robinson

ROBB, Judge,

concurs in result in part and dissents in part.

I respectfully dissent. In doing so, I acknowledge the procedural difficulties in this case; most significantly, that there are two inter-related cases, but we have before us on appeal only one. Moreover, not all of the relevant parties are involved in this appeal; FT Mortgage has not appeared to defend its interests. I also acknowledge the procedural missteps in the trial courts: Sharaya did not appeal Court ll’s denial of his motion to set aside the judgment and sale from that court. FT Mortgage did not appear in Centex’s action in Court 10, either to seek dismissal based upon the existence of its own prior lawsuit or to seek relief from the default judgment, and its failure to do so is in many respects responsible for this procedural quagmire. However, it seems to me that the majority’s resolution of this case — letting Centex retain its judgment — rewards Centex for its own failure; that is, its failure to seek redress through FT Mortgage’s lawsuit already pending in Court 11 as opposed to instituting its own separate lawsuit in Court 10. Regardless of the procedural difficulties, I believe that Court 10 lacked “jurisdiction of the case” and I would therefore affirm not just that part of the trial court’s order setting aside the sher*950iffs sale but also that part setting aside the judgment of foreclosure.

There are three types of jurisdiction: 1) jurisdiction of the subject matter; 2) jurisdiction of the person; and 3) jurisdiction of the particular case. In re Guardianship of K.T., 743 N.E.2d 348, 351 (Ind.Ct.App. 2001). This is clearly an instance in which “jurisdiction of the case” is at issue.11 Jurisdiction of the case refers to the trial court’s right, authority, and power to hear and decide a specific case within the class of cases over which a court has subject matter jurisdiction. Guardianship of K.T., 743 N.E.2d at 351. A judgment rendered by a court which lacks jurisdiction of the case is voidable, and requires a timely objection, or the lack of jurisdiction over the case is considered waived. Id. Accordingly, a reviewing court is not obligated to raise sua sponte the issue of jurisdiction of the case. Id.

I acknowledge that no challenge was made at the trial court level to the trial court’s jurisdiction to hear Centex’s particular case. I also acknowledge that we have waived consideration of similar issues on appeal for failure to object. See Jones v. Marengo State Bank, 526 N.E.2d 709, 716 (Ind.Ct.App.1988) (appellant contended trial court erred by holding a hearing because a related case had been filed previously in federal court; we held that although he had raised the affirmative defense of the same action pending in another court, his failure to make a motion to dismiss the suit prior to trial waived the issue). Ideally, FT Mortgage would have appeared in Centex’s Court 10 action and moved to dismiss the case because of its own case then pending in Court 11. Unfortunately, it did not. However, when Sharaya became aware of the competing judgments, he moved in both courts to set aside the judgments because Court 10 lacked jurisdiction to enter its July 1999 judgment and order for sheriffs sale. I would consider this, under these unusual and complicated circumstances, to be sufficient to raise the jurisdictional issue and further, I feel that this is clearly a case in which granting “extraordinary relief’ would be appropriate.

As our supreme court has stated, it is a “fundamental axiom of law” that courts of concurrent jurisdiction cannot exercise jurisdiction over the same subject at the same time. State ex rel. American Fletcher Nat’l Bank & Trust Co. v. Daugherty, 258 Ind. 632, 283 N.E.2d 526, 528 (1972). When an action is pending before an Indiana court, other Indiana courts must defer to that court’s authority over that case. Crawfordsville Apartment Co. v. Key Trust Co. of Florida, 692 N.E.2d 478, 479 (Ind.Ct.App.1998). Trial Rule 12(B)(8) implements this principle by allowing dismissal of one action on the grounds that the same action is pending in another Indiana court. Id at 479-80. Two actions are the “same” for purposes of the Rule if the parties, subject matter, and remedies sought are the same or substantially the same. Id. at 480. The determination of whether two actions being tried in different state courts constitute the same action depends upon whether the outcome of one action will affect the adjudication of the other. Indiana & Michigan Elec. Co. v. Terre Haute Indus., Inc., 467 N.E.2d 37, *95140 (Ind.Ct.App.1984). An “unseemly conflict of jurisdiction” exists between two courts of concurrent jurisdiction where both exert authority over the same case, so the jurisdiction of the court first acquiring jurisdiction is deemed exclusive. See State ex rel. Int’l Harvester Co. v. Allen Circuit Court, 265 Ind. 175, 352 N.E.2d 487, 489 (1976). “As a matter of policy and practicality in the operation of our judicial system, only one court should be able to exercise jurisdiction over a cause of action at any particular time. To hold otherwise would create confusion and chaos in our trial and appellate courts.” State ex rel. Coleman v. Hendricks Superior Court II, 272 Ind. 40, 396 N.E.2d 111, 112 (1979). This case is a prime example of the “confusion and chaos” our supreme court referenced.

There seems to be no avenue of resolution available to us which would completely clear up the confusion and chaos these parties have created by their procedural missteps and lack of candor to the trial courts. However, I believe by affirming the trial court’s order setting aside Cen-tex’s judgment, we can come close. Setting aside Centex’s judgment in Court 10 and leaving it with the relief it was granted by Court 11, the court in which it should have asserted its rights to begin with, seems appropriate in this case. Cen-tex was named as a defendant in FT Mortgage’s original complaint in Court 11 and ostensibly knew of that pending case when it filed its own in an entirely different court. The Court 11 judgment preserved Centex’s rights to the proceeds from the sale of the property. Thus, we would not be leaving Centex entirely without relief for the defaulted mortgage by affirming Court 10’s judgment in its entirety.

I also dissent from that part of the majority opinion which holds that FT Mortgage’s lien was extinguished when it failed to appear in Centex’s action. The court in Globe Acc. Ins. Co. v. Reid, 19 Ind.App. 203, 47 N.E. 947 (1897), in examining the validity of a default judgment, noted that “[t]his appeal being from a judgment by default, we cannot assume that anything was proved beyond what is shown in the complaint....” 47 N.E. at 950. This was reiterated in Christ v. Jovanoff, 84 Ind.App. 676, 151 N.E. 26 (1926), in which the court held in reviewing a default judgment that “it is the general rule that the relief granted to a plaintiff in a case where the defendant has been defaulted cannot exceed that which is demanded in the complaint.” 151 N.E. at 30.

Moreover, it is a longstanding rule of construction that allegations, statements, or admissions contained in a pleading are conclusive as against the pleader and a party cannot subsequently take a position contradictory or inconsistent with his pleadings. See Heck v. Selig, 134 Ind.App. 336, 188 N.E.2d 118, 120-21 (1963).

Centex’s complaint for foreclosure alleged that FT Mortgage was included as a party defendant thereto “by virtue of a mortgage dated March 15, 1996 and recorded April 3,1996 as Instrument No. 96-43735, in the original principal sum of $35,000.00.” Appendix of Appellant at 9. Centex’s mortgage was dated October 7, 1996, and recorded on October 15, 1996. Id. The relief requested by Centex’s complaint was that the court enter an order “declaring the validity and priority of all liens, interests and claims upon the real estate.... ” Appendix of Appellant at 10. Thus, the allegations of Centex’s own complaint acknowledge not only the existence, but also the priority of FT Mortgage’s lien, and Centex requested relief consistent with that acknowledgement. FT Mortgage’s failure to appear in Centex’s foreclosure action may have some import for Centex’s action, but I do not believe that *952the procedural default is sufficient to extinguish FT Mortgage’s lien for all purposes.

Accordingly, I concur in result in that part of the opinion which holds that the trial court properly set aside the sheriffs sale because of the irregularity in Centex’s simultaneous pursuit of the same case FT Mortgage had already filed in another court. I dissent from that part of the opinion in which the majority holds that the sale of the property subject to FT Mortgage’s hen was improper because the default judgment had extinguished FT Mortgage’s hen because I beheve the hen remains viable. Finally, I dissent from that part of the majority opinion which reverses the trial court’s order setting aside Centex’s judgment. I would affirm that order and let the case be worked out in Court 11, as it should have been all along.

. Subject matter jurisdiction refers to the power of a court to hear and decide a particular class of cases. K.T., 743 N.E.2d at 351. If a court does not have subject matter jurisdiction, any judgment that it renders is void. Hoang v. Jamestown Homes, Inc., 768 N.E.2d 1029, 1032 (Ind.Ct.App.2002). Because void judgments may be attacked directly or collaterally at any time, the issue of subject matter jurisdiction cannot be waived and may be raised at any point by a party or by the court sua sponte. Id.