Regal Homes & Restoration, LLC, and Scott Williams v. Richard Swenke (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 28 2019, 9:26 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Jeffrey A. Boggess
Greencastle, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Regal Homes & Restoration, June 28, 2019
LLC, and Scott Williams, Court of Appeals Case No.
Appellants-Plaintiffs, 18A-PL-1067
Appeal from the Hendricks
v. Superior Court
The Honorable Rhett M. Stuard,
Richard Swenke, Judge
Appellee-Defendant. Trial Court Cause No.
32D02-1801-PL-3
Robb, Judge.
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Case Summary and Issue
[1] In 2017, Regal Homes & Restoration, LLC (“Regal Homes”) and Richard
Swenke entered into a contract in which Regal Homes agreed to repair fire
damage on Swenke’s property located in Hendricks County. In 2018, Swenke
filed a complaint in Hendricks County for declaratory judgment against Regal
Homes alleging breach of contract. Regal Homes filed a motion to change
venue to Putnam County, alleging Hendricks County was not a county of
preferred venue. Swenke filed an objection and argued that Hendricks County
was a preferred venue under Trial Rule 75(A)(2). The trial denied the motion
and Regal Homes filed a motion to correct error, which the trial court also
denied. Regal Homes appeals, presenting one issue for our review, which we
restate as whether the trial court abused its discretion by denying Regal Homes’
motion for change of venue because Hendricks County was not a county of
preferred venue under Trial Rule 75(A)(2). Concluding the trial court did not
abuse its discretion because Hendricks County is a preferred venue, we affirm.
Facts and Procedural History
[2] Swenke owns property in Danville, Hendricks County, Indiana. Regal Homes
is a Tennessee limited liability company originally formed in January 2016 and
registered as a foreign limited liability company with the Indiana Secretary of
State. Regal Homes’ principal place of business is located in Putnam County,
Indiana. Scott Williams is Regal Homes’ registered agent, whose address is
also in Putnam County, Indiana.
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[3] On March 27, 2017, Swenke and Regal Homes entered into a contract in which
Regal Homes agreed to “[r]epair and/or replace all damages from fire
damage[.]” Appendix of Appellant at 16. The contract stated, in part:
1. Purchaser acknowledges that Regal Homes & Restoration
may be subject to delays due to inclement weather and material
shortages which are beyond the control of Regal [Homes].
Purchaser hereby accepts any delays due to one or all of these
circumstances in the construction process. Purchaser further
agrees to pay to Regal Homes & Restoration an amount equal to
20% of the total insurance estimate or Regal Homes &
Restoration’s bid if not provided, should Purchaser cancel the
contract for any reason after the 24 hour deadline.
Id.
[4] In August 2017, Swenke received his first distribution from the insurance
company and contacted Regal Homes “to sign the check over to Regal Home[s]
for the future work” it was going to perform. Id. at 10-11. However, Regal
Homes did not return Swenke’s calls. Months later, on December 4, 2017,
Swenke received a letter from Regal Homes indicating he owed $42,114.20 and
offering a $12,000 discount if he paid the amount by December 15.
[5] On January 5, 2018, Swenke filed his Verified Complaint for Declaratory
Judgment in Hendricks County against Regal Homes and Williams alleging
Regal Homes breached the contract. Specifically, he alleged that Regal Homes
failed to perform the terms of the contract and, as a result, he was forced to
obtain a new builder; Regal Homes failed to pay the subcontractor who did the
demolition on the property; Regal Homes was shut down by Hendricks County
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for failing to obtain proper permits; there was no inclement weather that would
have delayed Regal Homes’ work; no shortage of material was communicated
to him “nor was the project even at a point of requiring material when Regal
Home[s] stopped all communication”; and the contract failed to comply with
the Indiana Home Improvement Act. Id. at 10. Swenke requested that the trial
court enter a declaratory judgment that “due to Regal Homes[’] failure to
perform under the terms of the March 27, 2017 Document, [he] does not have
any obligations to Regal Homes.” Id. at 11.
[6] Regal Homes and Williams filed a Motion for Change of Venue on March 13,
2018, arguing that the “preferred venue,” pursuant to Trial Rule 75(A)(1), is
Putnam County, the county where the greater percentage of the individual
defendants reside. Swenke filed an objection and response to the motion,
acknowledging that Putnam County is a preferred venue under the rule but
arguing that Hendricks County is also a preferred venue pursuant to Trial Rule
75(A)(2) because the land in question is located in Hendricks County. And
because the matter was initially filed in a preferred venue, Swenke argued the
trial court lacked authority to transfer the case. The trial court denied the
motion for change of venue on April 3, 2018. Regal Homes and Williams
subsequently filed a Motion to Correct Error arguing Putnam County is the
preferred venue because Swenke’s complaint relates only to a debt, which is an
insufficient nexus to the land under 75(A)(2). The trial court denied the motion
and later dismissed Williams as a party. Regal Homes now appeals.
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Discussion and Decision
I. Standard of Review
[7] We begin by acknowledging that no appellee’s brief was filed on behalf of
Swenke. When an appellee does not file a brief, this court is not required to
advance arguments on the appellee’s behalf. Neal v. Austin, 20 N.E.3d 573, 575
(Ind. Ct. App. 2014). We may reverse if the appellant presents a case of prima
facie error; however, even when an appellee does not file a brief, questions of
law are nonetheless reviewed de novo. Id.
[8] A trial court’s ruling on a motion to transfer venue is reviewed for an abuse of
discretion, which occurs if the trial court’s decision is clearly against the logic
and effect of the facts and circumstances before it or it misinterprets the law.
Am. Family Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 973 (Ind. 2006). A trial
court’s factual findings linked to a motion under Trial Rule 75 are reviewed for
clear error, and its rulings of law are reviewed de novo. Bagsby v. Snedeker, 93
N.E.3d 1127, 1129 (Ind. Ct. App. 2018), trans. denied. “If factual
determinations are based on a paper record, they are also reviewed de novo.”
Am. Family Ins. Co., 857 N.E.2d at 973.
II. Motion for Change of Venue
[9] Trial Rule 75 governs venue requirements in Indiana. Pursuant to Trial Rule
75(A), any case may be filed in any county in Indiana, but each of its ten
subsections set forth criteria establishing a preferred venue. Garrison v. Ford, 53
N.E.3d 454, 455 (Ind. Ct. App. 2016). If a matter is not filed in a preferred
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venue, the trial court must transfer the case to a preferred venue upon proper
request from a party. Id. However, there is no priority among Rule 75(A)’s
subsections. Belcher v. Kroczek, 13 N.E.3d 448, 451 (Ind. Ct. App. 2014). There
may be multiple preferred venues in a given case, and a motion to transfer
venue cannot be granted when an action has been filed in a preferred venue. Id.
[10] At the trial court, the parties disputed whether Hendricks County was a
preferred venue. Swenke contended it was, pursuant to subsection (2), which
states that preferred venue lies in:
the county where the land or some part thereof is located or the
chattels or some part thereof are regularly located or kept, if the
complaint includes a claim for injuries thereto or relating to such land or
such chattels, including without limitation claims for recovery of
possession or for injuries, to establish use or control, to quiet title
or determine any interest, to avoid or set aside conveyances, to
foreclose liens, to partition and to assert any matters for which in
rem relief is or would be proper[.]
T.R. 75(A)(2) (emphasis added). The 1970 Civil Code Study Commission’s
intent when creating this subsection was “to broaden the class of local actions
allowing suit to be brought in the county where the land is located.” Diesel
Constr. Co., Inc. v. Cotten, 634 N.E.2d 1351, 1354 (Ind. Ct. App. 1994) (quotation
omitted). Thus, when a complaint alleges a claim related to land, the county
where the land is located is a preferred venue. Id.
[11] We employ a “nexus test” to determine whether a claim relates to the land
within the meaning of Trial Rule 75(A)(2): a claim relates to the land if there is
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a sufficient nexus between the land and the underlying action. Id. This nexus
test is affected “by such factors as, but not limited to, whether the acts giving
rise to liability occurred there, and whether examination of the site may be
necessary to resolve the dispute.” Id. In Diesel Constr. Co., a panel of this court
reversed and remanded the trial court’s denial of a motion to transfer venue and
explained:
If the trial court finds that [the plaintiff’s] claims concern only a
question of debt, the nexus to the land would be too remote to
meet T.R. 75(A)(2). However, if the breach of the contract is
based upon the quality of work performed on the land, for
example, such an issue would provide a sufficient nexus to the
land to be “related to the land” for purposes of T.R. 75(A)(2).
Id.; see also Bayless Specialties v. Affordable Housing, Inc., 637 N.E.2d 840, 841 (Ind.
Ct. App. 1994) (holding that preferred venue was in the county where
defendant’s principal place of business was located because plaintiffs’
complaints were entitled “complaint on account stated” and alleged that
defendant “failed and refused and continues to refuse to pay for . . . services and
is thereby indebted . . .” to plaintiffs rendering them “merely requests for the
repayment of debts”), trans. denied.
[12] In Skeffington v. Bush, 846 N.E.2d 761, 763-64 (Ind. Ct. App. 2006), a panel of
this court concluded that preferred venue was where land was located, finding
that, even if a plaintiff seeks to recover monetary damages, if the underlying
legal theory is based on the quality of work performed on the land, a sufficient
nexus exists between the action and land to be “related to land.” There, the
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plaintiff filed a lawsuit alleging breach of contract, breach of warranty, and
negligence in performance of the work in a contract to hydro-seed football
fields. Id. at 762. In determining whether a nexus existed between the action
and the land under Trial Rule 75(A)(2), this court concluded the plaintiff’s
claims were based on the quality of work performed on the land in question:
Although [the plaintiff] seeks to recover monetary damages, her
legal theory is based on the alleged poor quality of [the
defendant’s] work. . . . [Plaintiff] alleged [defendant] had
“guaranteed that the grass he sowed would sprout and grow” but
that he “failed to properly hydro-seed the fields and the grass did
not grow. Because the grass did not grow, [plaintiff] alleges she
had to “strip the fields of the nonconforming vegetation,”
purchase sod, and have the sod installed on the football fields, all
at her expense.
We find a sufficient nexus between [plaintiff’s] action and the
football fields [defendant] hydro-seeded for [plaintiff’s] complaint
to allege[] claims related to land [under Trial Rule 75(A)(2)].
Id. at 763-64 (emphasis added) (internal citations omitted). Thus, the county
where the football fields were located was a preferred venue.
[13] In Trustees of Purdue Univ. v. Hagerman Constr. Corp., 736 N.E.2d 819 (Ind. Ct.
App. 2000), trans. denied, Purdue entered into agreements with several
contractors to construct a building on their campus in Tippecanoe County and
subsequently filed a declaratory relief action in Tippecanoe County against the
contractors, including Hagerman. Hagerman objected to venue and moved to
change venue, and the trial court granted the motion and transferred the case to
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Allen County. A panel of this court held that a sufficient nexus existed between
the land in Tippecanoe County where the contractor was to perform work and
Purdue’s action for three reasons: (1) the resolution of whether the contractor
breached its contractual duty of coordinating and scheduling may require an
evaluation of the parties’ business relationships, which was centered around the
project where the land was located; (2) the contractor’s “work” was
coordinating and scheduling which affected the land where the project was
located and Purdue’s legal theory was based on the contractor’s alleged poor
quality of work that affected the land; and (3) Purdue persuasively argued that
Tippecanoe County was the more convenient venue because potential witnesses
were located in or near Tippecanoe County. Thus, a panel of this court agreed
that there was a sufficient nexus between Purdue’s claim and the land making
Tippecanoe County a preferred venue.
[14] On appeal, Regal Homes argues that Swenke’s complaint only concerns a
question of debt and is therefore too remote to relate to the land under Trial
Rule 75(A)(2). We disagree. Here, Swenke’s complaint alleged: Regal Homes
failed to perform the terms of the contract; Regal Homes failed to pay a
subcontractor who completed the demolition on the property; “Regal Homes’
work at the Danville property was shut down” by the county due to its failure to
obtain proper permits; after obtaining the proper permits, Regal Homes
“provided no further work” on the property which forced Swenke to hire
another builder; Regal Homes would not communicate with Swenke after this;
and the contract failed to comply with the Indiana Home Improvement Act.
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App. of Appellant at 9. Swenke sought a declaratory judgment “stating [that]
due to Regal Homes[’] failure to perform under the terms of the March 27, 2017
Document, [he] does not have any obligations to Regal Homes.” Id. at 11.
[15] Although Swenke ultimately seeks a declaratory judgment that he is not indebted
to Regal Homes and there are some issues set forth in the complaint that do not
relate to the land in question, at least one issue set forth in the complaint relates
to the land. Specifically, Swenke alleges that Regal Homes performed some
work on the property but later abandoned the work. Thus, the trial court must
determine whether Swenke is indebted to Regal Homes – an inquiry that hinges
on evaluating work Regal Homes performed on the land in Hendricks County
pursuant to the contract. We conclude that there is a sufficient nexus between
the land and Swenke’s claim. Therefore, Hendricks County is a county of
preferred venue and the trial court did not abuse its discretion by denying Regal
Homes’ motion to transfer venue.
Conclusion
[16] In sum, we conclude Swenke’s action does relate to the land located in
Hendricks County and that Hendricks County is a preferred venue under Trial
Rule 75(A)(2). Therefore, the trial court did not abuse its discretion by denying
Regal Homes’ motion to transfer venue to Putnam County. The order of the
trial court is affirmed.
[17] Affirmed.
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Baker, J., and Najam, J., concur.
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