Jesse Eads and Total Image Exteriors, LLC d/b/a TIE Tree Services v. Patrick Turner (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Dec 31 2015, 10:24 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
JESSE EADS Nicholas C. Deets
Jeffrey R. Mitchell Hovde Dassow & Deets LLC
American Family Insurance Indianapolis, Indiana
Indianapolis, Indiana
ATTORNEYS FOR APPELLANT ATTORNEY FOR AMICUS
TOTAL IMAGE EXTERIORS, LLC CURIAE INDIANA TRIAL
Grover B. Davis
LAWYERS ASSOCIATION
James T. Flanigan David L. Farnbauch
McClure McClure & Davis Sweeney Law Firm
Indianapolis, Indiana Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jesse Eads and December 31, 2015
Total Image Exteriors, LLC Court of Appeals Case No.
d/b/a TIE Tree Services, 73A05-1505-CT-422
Appellants-Defendants, Appeal from the Shelby Superior
Court
v.
The Honorable R. Kent Apsley,
Judge
Patrick Turner,
Trial Court Cause Nos.
Appellee-Plaintiff 73D01-1503-CT-10
34D04-1501-CT-21
Bailey, Judge.
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Case Summary
[1] Appellants-Defendants Jesse Eads (“Eads”) and Total Image Exteriors, LLC
d/b/a TIE Tree Services (“TIE”) bring an interlocutory appeal as of right,1
challenging the order of the Shelby County Superior Court, upon a motion to
correct error made by Appellee-Plaintiff Patrick Turner (“Turner”), to return a
case to its origin, Howard County, as a county of preferred venue. We are
presented with the sole issue of whether Howard County is a county of
preferred venue because it is the county where TIE’s principal office is located.2
We affirm.
1
Indiana Trial Rule 75(E) provides in relevant part: “An order transferring or refusing to transfer a case
under this rule shall be an interlocutory order appealable pursuant to Appellate Rule 14(A)(8). Indiana
Appellate Rule 14(A)(8) provides that “transferring or refusing to transfer a case under Trial Rule 75” is
appealable as of right by filing a Notice of Appeal with the Clerk within thirty days after the notation of the
interlocutory order in the Chronological Case Summary.
2
Eads and TIE articulate an additional issue as to waiver, contending that Turner knowingly relinquished a
known right to challenge the transfer to Shelby County by failing to timely file an objection to the motion of
Eads and TIE to transfer to a county of preferred venue. The chronological case summary (“CCS”) indicates
that, on February 2, 2015, the trial court “gave Plaintiff 20 days to respond” to the motion. (App. at 2.) The
Appendix includes an order, dated February 24, 2015, providing that the motion for transfer was granted and
the case transferred to Shelby County. However, the Howard County CCS indicates that, on February 25,
2015, the cause was set for a case management conference on May 14, 2015 in Howard County. On
February 26, 2015, counsel for Turner contacted the Howard County Superior Court, purportedly to advise
that he had just received notice of the motion and that a response would be forthcoming. The response was
filed on the same day. At the subsequent hearing on Turner’s motion to correct error, conducted in Shelby
County, counsel for TIE stated TIE’s position that Turner had waived his right to oppose the venue transfer.
However, no factual record was developed as to the circumstances surrounding the late filing. We will not
speculate in this regard.
Moreover, the order on appeal is silent with respect to the claimed waiver. The order of the court states in
relevant part: “The sole issue presented for the Court’s consideration is Plaintiff’s averment that the Howard
Superior Court No. 4 improperly venued this case to Shelby County, Indiana.” (App. at 8.) Given the
brevity of the record, the bald allegation of waiver made by Eads and TIE does not provide independent
grounds for the reversal of the interlocutory order of the trial court.
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Facts and Procedural History
[2] In a complaint filed in the Howard County Superior Court on January 12,
2015, Turner alleged that he was bitten by a dog owned by Eads or TIE. The
incident was alleged to have occurred in Shelby County, where Turner and
Eads reside, and where TIE is headquartered.
[3] On February 2, 2015, Eads and TIE filed a Motion for Transfer to County of
Preferred Venue. On February 24, 2015, the motion was granted and the case
was ordered to be transferred to Shelby County. On March 2, 2015, Turner
filed a motion to correct error. He subsequently filed a motion to remand to
Howard County. On April 20, 2015, a hearing was conducted in Shelby
Superior Court No. 1. On April 22, 2015, the trial court issued an order
returning the case to Howard County. This appeal ensued.
Discussion and Decision
[4] Trial Rule 75 governs venue requirements in Indiana. Each of its ten
subsections sets forth criteria establishing “preferred venue.” American Family
Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 973-74 (Ind. 2006). A case or
complaint may be filed in any Indiana county; however, if the complaint is not
filed in a preferred venue, the court is required to transfer the case to a preferred
venue upon the proper request from a party. Id. at 974 (citing T.R. 75(A)). The
rule does not create a priority among the subsections establishing preferred
venue; thus, if the complaint is filed in a preferred venue, the trial court has no
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authority to transfer the case based solely on preferred venue in one or more
other counties. Id.
[5] Subsection (4) of the rule establishes preferred venue in the county where the
principal office of a defendant organization is located. Id. Accordingly, if a
case is filed in the county where the principal office of a defendant organization
is located, transfer to another county on grounds of preferred venue would be
inappropriate. Id.
[6] Here, there is no factual dispute; rather, the parties disagree as to what
constitutes a principal office of a defendant domestic corporation. Rulings of
law are reviewed de novo. Id. at 973. Turner filed his complaint in Howard
County on the basis that the registered agent for TIE is in Howard County and
thus the principal office of TIE is in Howard County. Eads and TIE moved to
transfer to a county of preferred venue on the basis that TIE’s principal office is
in Shelby County, because that is where TIE has a physical presence.
[7] In ruling upon Turner’s motion to correct error, the trial court observed that:
“American Family … speaks directly to this issue.” (App. at 12.) American
Family involved an automobile insurer bringing a subrogation action against a
vehicle manufacturer, Ford Motor Company (“Ford”), to recover damages
from a vehicle fire. 875 N.E.2d at 972. The insured resided in Spencer County,
where the fire occurred. Ford had no offices in Indiana but maintained its
registered agent in Marion County pursuant to Indiana Code Section 23-1-24-1.
American Family sued Ford in Marion County and Ford filed a motion to
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transfer venue to Spencer County. Ford’s motion was granted and American
Family appealed. The Court of Appeals reversed, concluding that Marion
County was a preferred venue under Trial Rule 75(A)(10). On transfer, the
Indiana Supreme Court also concluded that Marion County was a preferred
venue, but reached its conclusion on a different basis. Specifically, because
Ford maintained a registered agent in Marion County, Ford’s principal office in
the State was in Marion County. Id. at 973.
[8] Eads and TIE argue that the rationale of American Family must be limited to
foreign corporations and is not applicable to a domestic corporation such as
TIE. We must disagree. Our Indiana Supreme Court explicitly identified the
scope of its decision: “We hold that the term ‘principal office’ as used in
subsections (4) and (10) of Trial Rule 75(A) refers to a domestic or foreign
corporation’s registered office in Indiana.” Id. at 972. Thus, the Court
succinctly included both foreign and domestic corporations in its holding.
[9] Nonetheless, Eads and TIE argue for our modification of the bright line rule.
They argue that physical presence more accurately establishes a principal office
of a corporation domiciled in Indiana than does the registered agent’s address.
They warn that litigation may frequently proceed in a forum that has no nexus
to the case. We observe that it is the corporation who makes the election
regarding its registered agent. Moreover, we will not disregard binding
precedent for the sake of claimed convenience. See Patton v. State, 507 N.E.2d
624, 626 (Ind. Ct. App. 1987) (“We are obliged to follow precedents established
by the Indiana Supreme Court”), trans. denied.
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Conclusion
[10] Howard County, where Turner initially filed his complaint, is a preferred venue
for the complaint. The Shelby County Superior Court did not err in ordering
that the case proceed in Howard County.
[11] Affirmed.
Vaidik, C.J., and Crone, J., concur.
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