MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Dec 29 2017, 11:45 am

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


ATTORNEYS FOR APPELLANTS                                 ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                      Brian J. Johnson
Attorney General of Indiana                              Danville, Indiana
Aaron T. Craft
Patricia C. McMath
Deputy Attorneys General
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Prosecuting Attorney of                                  December 29, 2017
Hendricks County and Indiana                             Court of Appeals Case No.
Bureau of Motor Vehicles,                                32A01-1705- MI-1107
Appellant-Respondent,                                    Appeal from the Hendricks
                                                         Superior Court
        v.                                               The Honorable Stephenie LeMay-
                                                         Luken, Judge
Randy L. Hammer,                                         Trial Court Cause No.
Appellee-Petitioner.                                     32D05-1611-MI-230




Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A01-1705-MI-1107 | December 29, 2017           Page 1 of 8
[1]   The Hendricks Superior Court granted Randy L. Hammer’s (“Hammer”)

      petition for specialized driving privileges. Approximately three months later,

      the Bureau of Motor Vehicles (“the BMV”) filed a Trial Rule 60(B) motion to

      set aside the judgment arguing that the Hendricks Superior Court did not have

      jurisdiction to grant specialized driving privileges on a suspension arising from

      a habitual traffic violator conviction in the Morgan Superior Court. The trial

      court denied the motion to set aside, and the BMV appeals.

[2]   Concluding that the Hendricks Superior Court has subject matter jurisdiction

      over the case and the alleged legal error should have been raised on direct

      appeal, we affirm the judgment of the trial court.


                                 Facts and Procedural History
[3]   Hammer, a resident of Hendricks County, has a long history of traffic offenses

      and driving related convictions in both Hendricks County and Morgan County.

      In November 2016, Hammer had six active suspensions of his driving

      privileges. It is undisputed that the BMV imposed three of the six suspensions.

      The other three suspensions resulted from Hammer’s convictions for operating

      a vehicle while his privileges were suspended because he is a habitual traffic

      violator. Two convictions occurred in Hendricks Superior Court, and one

      occurred in Morgan Superior Court.


[4]   On November 22, 2016, Hammer filed a petition in Hendricks Superior Court

      requesting specialized driving privileges pursuant to Indiana Code section 9-30-

      16-3. Specifically, Hammer asked the court to stay his current suspensions to

      Court of Appeals of Indiana | Memorandum Decision 32A01-1705-MI-1107 | December 29, 2017   Page 2 of 8
      allow him to drive to work and use his vehicle for work purposes. Appellant’s

      App. p. 13.


[5]   If a suspension is court-ordered, Indiana Code section 9-30-16-3 requires a

      petition for specialized driving privileges to be filed in the court that issued the

      suspension. If the suspension was administratively imposed by the BMV,

      Indiana Code section 9-30-16-4 requires the petition to be filed in the

      individual’s county of residence.


[6]   The Hendricks County Prosecutor appeared on behalf of the State and the BMV

      at the hearing held on the petition. During the hearing, the BMV objected only

      to Hammer’s request with regard to the Morgan County conviction and

      resulting suspension of his driving privileges. The trial court indicated that it

      viewed the suspension arising from the Morgan County conviction as an

      administrative suspension. Tr. p. 5. The trial court granted the petition over the

      BMV’s objection. And on January 18, 2017, Hammer was granted specialized

      driving privileges on all of his active suspensions. The court’s order noted that

      Hammer’s petition complied with the pleading requirements of Indiana Code

      section 9-30-16-4, and categorized his suspensions as administrative

      suspensions.


[7]   Three months later, the BMV filed a Trial Rule 60(B) motion for relief from

      judgment. The BMV argued that only the Morgan Superior Court had authority

      to grant specialized driving privileges to Hammer for the suspension of his

      driving privileges imposed as a result of his Morgan County conviction for


      Court of Appeals of Indiana | Memorandum Decision 32A01-1705-MI-1107 | December 29, 2017   Page 3 of 8
      operating after being adjudged a habitual traffic violator. Appellant’s App. Vol.

      II, p. 17. The BMV also argued that a court of equal jurisdiction, in this case the

      Hendricks Superior Court, did not have authority to stay or modify an order of

      the Morgan Superior Court.1 Id. at 19–20.


[8]   The trial court denied the BMV’s motion and issued the following order:


               The Court interprets the BMV’s Motion for Relief from
               Judgment as a motion to correct error which the BMV is
               phrasing as a Motion for Relief from Judgment. The State of
               Indiana was represented in this matter. The time to file a motion
               to correct error has passed.


      Id. at 6. The BMV now appeals.


                                        Discussion and Decision
[9]   The BMV argues that the Hendricks Superior Court lacked “subject matter

      jurisdiction to stay, vacate, modify, or in any way control the execution of

      orders issued by another trial court of similar jurisdiction or equal rank.”

      Appellant’s Br. at 12–13. Consequently, the BMV contends that the Hendricks




      1
        Although the BMV argued lack of subject matter jurisdiction in its motion, it cited to Indiana Trial Rule
      60(B)(1), addressing mistake, surprise, or excusable neglect, 60(B)(2) addressing relief from a final judgment
      on any ground for a motion to correct error if the error could not be discovered within the time limits
      established in Trial Rule 59, and 60(B)(8) allowing relief from judgment for any reason justifying relief from
      the operation of the judgment. Trial Rule 60(B)(6), which was not cited in the BMV’s motion, allows relief
      from judgment if the judgment is void. See Clark v. State, 727 N.E.2d 18, 20 (Ind. Ct. App. 2000) (explaining
      that a judgment made when the court lacks subject matter jurisdiction is void).

      Court of Appeals of Indiana | Memorandum Decision 32A01-1705-MI-1107 | December 29, 2017            Page 4 of 8
       Superior Court’s judgment granting specialized driving privileges on the

       suspension arising out of Morgan Superior Court is void.


[10]   As we noted above, a petition for specialized driving privileges for a court-

       ordered suspension must be filed in the court that has “ordered or imposed a

       suspension of the individual’s driving privileges.” Ind. Code § 9-30-16-3. But if

       the suspension is administratively imposed by the BMV, the petition must be

       filed “in the county in which the individual resides.”2 Ind. Code § 9-30-16-4.


[11]   Hammer referenced Indiana Code section 9-30-16-3 in his petition, and filed the

       petition in Hendricks County, even though one of the six suspensions was

       imposed following his conviction for felony operating while a habitual traffic

       violator in Morgan County. In this appeal, Hammer argues that even though

       the suspension was imposed as a result of his conviction, it is an

       administratively imposed suspension. And the trial court characterized all of

       Hammer’s suspensions as administrative suspensions in its order granting

       Hammer specialized driving privileges and found that his petition complied

       with the requirements of Indiana Code section 9-30-16-4. Because this appeal

       can be resolved without considering whether a suspension imposed as a result

       of a felony conviction for operating while a habitual traffic violator is a court-




       2
         If the individual is not currently a resident of Indiana, the petition must be filed “in the county in which the
       individual’s most recent Indiana moving violation judgment was entered against the individual.” I.C. § 9-30-
       16-4.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1705-MI-1107 | December 29, 2017               Page 5 of 8
       ordered suspension or administratively imposed suspension, we leave that

       question for another day.


[12]   The BMV failed to appeal the trial court’s order granting Hammer specialized

       driving privileges. It seeks to avoid waiver by arguing that the trial court lacked

       subject matter jurisdiction to grant Hammer’s petition on the suspension

       resulting from the Morgan County conviction. And now for the first time, the

       BMV argues that Hendricks County Superior Court No. 5 lacked jurisdiction to

       address Hammer’s petition for the suspensions arising from convictions out of

       Hendricks Superior Courts Nos. 2 and 3.


[13]   In K.S. v. State, 849 N.E.2d 538 (Ind. 2006), our supreme court clarified that

       only judgments issued by courts without subject matter jurisdiction are void and

       may be collaterally attacked. “For some time, Indiana has adhered to the rule

       that the judgment of a court ‘having jurisdiction of the subject matter of the suit

       and of the person, however irregular, is not void and not impeachable

       collaterally, unless it may be for fraud.’ . . . By contrast, a judgment rendered

       without jurisdiction may be collaterally attacked.” Id. at 541 (quoting Mishler v.

       County of Elkhart, 544 N.E.2d 149, 151 (Ind. 1989)).


[14]   “The question of subject matter jurisdiction entails a determination of whether

       a court has jurisdiction over the general class of actions to which a particular

       case belongs.” Troxel v. Troxel, 737 N.E.2d 745, 749 (Ind. 2000). Personal

       jurisdiction requires that appropriate process be effected over the parties. K.S.,

       849 N.E.2d at 540. “Where these two exist, a court’s decision may be set aside


       Court of Appeals of Indiana | Memorandum Decision 32A01-1705-MI-1107 | December 29, 2017   Page 6 of 8
       for legal error only through direct appeal and not through collateral attack.” Id.

       The Court observed that “[a]ttorneys and judges alike frequently characterize a

       claim of procedural error as one of jurisdictional dimension” and that “[t]he

       fact that a trial court may have erred along the course of adjudicating a dispute

       does not mean it lacked jurisdiction.”3 Id. at 541.


[15]   “[T]he subject matter jurisdiction of our courts is generally created by statute or

       constitutional provision[.]” In re Adoption of J.T.D., 21 N.E.3d 824, 829 (Ind.

       2014) (quoting N. Ind. Commuter Transp. Dist. v. Chicago SouthShore and South

       Bend R.R., 685 N.E.2d 680, 695 (Ind. 1997)). The Hendricks Superior Court has

       “original and concurrent jurisdiction in all civil and in all criminal cases[.]” See

       Ind. Code § 33-29-1-1.5.


[16]   The Hendricks Superior Court has subject matter jurisdiction to adjudicate

       petitions for specialized driving privileges. Whether Hammer filed his petition

       in the proper court as provided in Indiana Code sections 9-30-16-3 and -4 is a

       question of legal error, not jurisdictional error. The BMV failed to appeal the

       trial court’s judgment adjudicating Hammer’s request for specialized driving

       privileges. Thus, the BMV forfeited its argument that the Hendricks Superior

       Court erred when it concluded that the suspensions were administrative, and

       therefore, properly before the court pursuant to Indiana Code section 9-30-16-4.




       3
        Our supreme court explained that “[r]eal jurisdictional problems would be, say, a juvenile delinquency
       adjudication entered in a small claims court, or a judgment rendered without any service of process.” K.S.,
       849 N.E.2d at 542.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1705-MI-1107 | December 29, 2017          Page 7 of 8
       See Ind. Appellate Rule 9(A) (stating that the right to appeal shall be forfeited if

       the notice of appeal is not timely filed).


[17]   The BMV’s Trial Rule 60(B) motion constitutes an improper collateral attack

       on the trial court’s judgment, and we therefore conclude that the trial court

       properly denied the motion.


[18]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1705-MI-1107 | December 29, 2017   Page 8 of 8
