                                                                                      FILED
                                                                                 May 30 2017, 8:28 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




      APPELLANT PRO SE
      Darlene Sekerez
      Crown Point, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Darlene Sekerez,                                          May 30, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                45A04-1610-MI-2395
              v.                                                Appeal from the Lake Superior
                                                                Court
      Grund & Leavitt PC,                                       The Honorable Calvin D.
      Appellee-Plaintiff.                                       Hawkins, Judge
                                                                Trial Court Cause No.
                                                                45D02-1604-MI-6



      Najam, Judge.


                                        Statement of the Case
[1]   Darlene Sekerez appeals the Lake Superior Court’s order to domesticate the

      judgment of an Illinois trial court. Sekerez, needing to establish only prima facie

      error, raises seven issues for our review, but we discuss only the following

      dispositive issue: whether the motion to domesticate the Illinois trial court’s

      judgment was, in its operation and effect, contrary to proceedings already

      Court of Appeals of Indiana | Opinion 45A04-1610-MI-2395 | May 30, 2017                       Page 1 of 7
      pending in the Lake Circuit Court and, as such, outside the jurisdiction of the

      Lake Superior Court. We reverse and remand with instructions.


                                  Facts and Procedural History
[2]   Sekerez is an Indiana resident. In November 2007, Sekerez retained Grund &

      Leavitt, P.C (“the law firm”), a Chicago law firm, to represent her in an

      Indiana custody dispute with her former spouse. Sekerez’s contract with the

      law firm contained an alternative dispute resolution clause with respect to fee

      disputes that might arise between the law firm and Sekerez.


[3]   On October 20, 2008, the law firm negotiated a settlement agreement on

      Sekerez’s behalf, which resulted in an Agreed Order under which custody

      remained with Sekerez, visitation terms were not changed, and Sekerez was

      responsible for paying her own attorney’s fees. The law firm charged Sekerez a

      total of $112,439.90 for legal services. Sekerez paid $50,000 but disputed the

      remaining $62,439.90.


[4]   On July 31, 2009, the law firm filed a “Verified Complaint for Breach of

      Contract and Quantum Meruit,” seeking the remainder of the attorney’s fees, in

      an Illinois trial court. Appellant’s App. Vol. II at 25-30. In response, Sekerez

      filed a “Special Appearance and Objection to Jurisdiction” in which she

      appeared for the limited purpose of challenging the Illinois court’s subject

      matter jurisdiction over the complaint and personal jurisdiction over her. Id. at

      31-32. On March 16, 2010, the Illinois trial court entered an order in which it

      found that the parties’ engagement agreement required them to resolve their fee

      Court of Appeals of Indiana | Opinion 45A04-1610-MI-2395 | May 30, 2017     Page 2 of 7
      dispute through arbitration. Id. at 38-39. The court ordered the parties to

      arbitration and stayed all proceedings pending the outcome of arbitration. Id. at

      39.


[5]   The parties proceeded to arbitration in Hammond, Indiana. Each party filed

      claims of breach of contract. Sekerez filed additional claims for fraud and legal

      malpractice. Following a hearing, on November 9 the Arbitrator issued the

      final award in which he ordered Sekerez to pay the law firm an additional

      $49,336.15 in attorney’s fees and $1,012.50 as her portion of the administrative

      fees and Arbitrator fees. The final award also stated: “This Award is in full

      settlement of all claims submitted in this Arbitration, namely the Claimant’s

      claim for breach of contract and the Respondent’s counterclaim for breach of

      contract.” Id. at 36-37. However, the arbitration award noted that Sekerez’s

      fraud and legal malpractice claims were “outside the scope of the parties’

      arbitration agreement” and, therefore, not within the scope of the arbitration

      award. Id. at 37.


[6]   Thereafter, the law firm returned to the Illinois trial court and filed a motion to

      confirm the arbitration award in which the law firm sought a final judgment

      from that court on the final award. Sekerez objected and again contested the

      court’s jurisdiction. On November 30, the Illinois trial court held a hearing at

      which Sekerez failed to appear, and the court granted the law firm’s motion to

      confirm the final award. The court entered judgment against Sekerez for

      $50,348.65 and dismissed the case without prejudice. Id. at 47.



      Court of Appeals of Indiana | Opinion 45A04-1610-MI-2395 | May 30, 2017    Page 3 of 7
[7]   On February 13, 2012, Sekerez, pro se, filed a motion to vacate the final award

      in the Lake Circuit Court pursuant to the Indiana Uniform Arbitration Act. See

      Ind. Code § 34-57-2-13 (2016). Thereafter, with the Lake Circuit Court’s

      permission, Sekerez filed an amended pleading in which she added breach of

      contract, fraud in the inducement, constructive fraud, breach of fiduciary duty,

      and attorney malpractice claims. The law firm moved to dismiss Sekerez’s

      action on the ground that the Illinois trial court’s judgment precluded Sekerez’s

      claims in the Lake Circuit Court, but the court denied the law firm’s motion to

      dismiss and similar motions made by the law firm thereafter.


[8]   Following the denial of its motions to dismiss in the Lake Circuit Court, in

      April of 2016 the law firm filed in the Lake Superior Court, under a new cause

      of action, a motion to domesticate the Illinois trial court’s judgment and set

      matters for proceedings supplemental on that judgment. Id. at 6. On May 6,

      Sekerez requested that the Lake Superior Court deny the law firm’s request or,

      in the alternative, stay the request pending the outcome of proceedings in the

      Lake Circuit Court. Sekerez noted that the proceedings in the Lake Circuit

      Court contested the arbitration award, which was the basis for the judgment of

      the Illinois court. Id. at 10.


[9]   On October 3, 2016, the Lake Superior Court denied Sekerez’s request to deny

      or stay the law firm’s motion and granted the law firm’s request. Id. at 5. The

      court then entered the Illinois judgment as a final judgment. Id. This appeal

      from the Lake Superior Court’s judgment ensued.



      Court of Appeals of Indiana | Opinion 45A04-1610-MI-2395 | May 30, 2017   Page 4 of 7
                                          Discussion and Decision
[10]   Sekerez appeals the Lake Superior Court’s order adopting the Illinois trial

       court’s judgment as a final and enforceable judgment of an Indiana court. We

       initially note that the law firm has not filed a brief in support of the trial court’s

       judgment. As such, we will not undertake the burden of developing an

       argument on the appellee’s behalf. Front Row Motors, LLC v. Jones, 5 N.E.3d

       753, 758 (Ind. 2014). Instead, we will reverse the trial court’s judgment if the

       appellant presents a case of prima facie error. Id. Prima facie error is error “at

       first sight, on first appearance, or on the face of it.” Id. (quotation marks

       omitted).


[11]   Sekerez has demonstrated prima facie error. On the face of the record on appeal,

       the question of the validity of the arbitration order is currently before the Lake

       Circuit Court. That arbitration order is the exclusive basis for the Illinois trial

       court’s judgment, a judgment from a court that Sekerez has asserted is without

       subject matter jurisdiction or personal jurisdiction in this matter. And the law

       firm has challenged the Lake Circuit Court’s authority to review the arbitration

       award under the doctrine of res judicata, which the Lake Circuit Court has

       denied.1




       1
         If the Illinois trial court lacked subject matter jurisdiction over the arbitration award or personal jurisdiction
       over Sekerez, then it lacked the authority to enter judgment on the arbitration award against her.

       Court of Appeals of Indiana | Opinion 45A04-1610-MI-2395 | May 30, 2017                                 Page 5 of 7
[12]   The law firm’s ensuing attempt to have the Lake Superior Court domesticate

       the Illinois trial court’s judgment on the arbitration award appears, on the face

       of it, to simply have been an attempt to circumvent the proceedings in the Lake

       Circuit Court. That was inappropriate, and the Lake Superior Court should

       have denied the request. As the Indiana Supreme Court has long made clear:


               It is well settled that two courts of concurrent jurisdiction cannot
               deal with the same subject matter at the same time. Once
               jurisdiction over the parties and the subject matter has been
               secured, it is retained to the exclusion of other courts of equal
               competence until the case is determined. The court first
               acquiring jurisdiction holds the res in custodia legis so long as it is
               empowered to administer complete justice. . . .


       State ex rel. Am. Fletcher Nat’l Bank & Trust Co. v. Daugherty, 258 Ind. 632, 635,

       283 N.E.2d 526, 528 (1972) (citations omitted). The Indiana Trial Rules

       likewise prohibit an Indiana court from hearing “[t]he same action pending in

       another state court of this state.” Ind. Trial Rule 12(B)(8); see also Crawfordsville

       Apt. Co. v. Key Trust Co., 692 N.E.2d 478, 479 (Ind. Ct. App. 1998) (“As a

       general principle when an action is pending before an Indiana court, other

       Indiana courts must defer to that court’s authority over the case.”).

       Accordingly, we must conclude, in light of our prima facie standard of review,

       that the Lake Superior Court’s order to domesticate the Illinois trial court’s

       judgment was ultra vires. Thus, we reverse the trial court’s judgment and

       remand with instructions for the court to vacate its order.


[13]   Reversed and remanded with instructions.


       Court of Appeals of Indiana | Opinion 45A04-1610-MI-2395 | May 30, 2017           Page 6 of 7
Riley, J., and Bradford, J., concur.




Court of Appeals of Indiana | Opinion 45A04-1610-MI-2395 | May 30, 2017   Page 7 of 7
