William M. Belcher v. Catherine Kroczek, D.D.S. , 2014 Ind. App. LEXIS 306 ( 2014 )

FOR PUBLICATION
Jul 09 2014, 9:57 am
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL K. SUTHERLIN PAUL A. ROSSI
SAMUEL M. ADAMS DAVID ANDRICK
Michael K. Sutherlin & Associates Lowell, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WILLIAM M. BELCHER, )
)
Appellant/Defendant, )
)
vs. ) No. 45A03-1311-CT-436
)
CATHERINE KROCZEK, D.D.S., )
)
Appellee/Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable William E. Davis, Judge
Cause No. 45D05-1307-CT-125
July 9, 2014
OPINION - FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
Indiana Trial Rule 75(A) allows a case to be filed in any county in Indiana. In this
case, Catherine Kroczek, a Lake County dentist, filed suit against William W. Belcher in
Lake County under Trial Rule 75(A)(2). Belcher later filed a motion to transfer venue,
and a dispute arose over whether Dr. Kroczek had properly established preferred venue in
Lake County.
We conclude that preferred venue does not lie in Lake County. In relevant part,
Trial Rule 75(A)(2) provides that preferred venue may lie in the county where the
chattels at issue are located. When identifying chattels, our Courts have emphasized their
transferrable nature. At issue here is Dr. Kroczek’s reputation, privacy, and identity,
none of which may be transferred. We therefore conclude that they are not chattels, and
Dr. Kroczek may not invoke Trial Rule 75(A)(2). We reverse.
Facts and Procedural History
Belcher and Dr. Kroczek began dating in early 2012. Years before meeting
Belcher, Dr. Kroczek contracted the herpes simplex virus, and at some point during the
relationship, she told Belcher this. Dr. Kroczek ended the relationship in September
2012.
Dr. Kroczek worked at a number of dentistry offices, including her father’s office.
Shortly after the relationship ended, Belcher began sending letters to Dr. Kroczek’s
employers and colleagues. In these letters, Belcher informed the reader that Dr. Kroczek
had herpes. See Appellant’s App. p. 27-31. In some of the letters, Belcher also stated
that Dr. Kroczek had infected “only a few people” and requested that “appropriate
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action” be taken. Id. Belcher later registered Dr. Kroczek—without her knowledge or
consent—with the Centers for Disease Control and Prevention and the Seattle STD/HIV
Prevention Training Center. Id. at 32-33.
Dr. Kroczek filed a complaint against Belcher in Lake County, claiming that
Belcher committed defamation per se, invasion of privacy, disclosure of private facts,
intentional infliction of emotional distress, identity theft, and tortious interference with
business relationships. Id. at 11-20. Belcher filed a motion to transfer venue to Marion
County, id. at 35-37, and Dr. Kroczek filed a response opposing transfer, id. at 39-48.
Belcher sought to transfer venue to Marion County based on his residence there.
See Ind. Trial Rule 75(A)(1) (“Preferred venue lies in . . . the county where the greater
percentage of individual defendants included in the complaint resides, or, if there is no
such greater percentage, the place where any individual defendant so named resides[.]”).
Dr. Kroczek claimed that she had already established preferred venue in Lake County
based on Indiana Trial Rule 75(A)(2). Trial Rule 75(A)(2) provides that preferred venue
may lie 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[.]
(emphasis added).
Dr. Kroczek claimed that Belcher had damaged her reputation, privacy, identity,
and goodwill, and that these are chattels—specifically, intangible personal chattels—
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under Trial Rule 75(A)(2). In response, Belcher argued that “reputation, privacy, and
identity are not . . . chattels under Indiana law.” Appellant’s App. p. 51. Belcher also
asserted that Dr. Kroczek’s complaint did not allege an injury to goodwill; thus, damage
to goodwill could not serve as a basis for establishing preferred venue in Lake County.
Id. at 51-52.
After a hearing, the trial court denied Belcher’s motion to transfer venue, stating:
[Dr. Kroczek] brought her suit in Lake County. Her suit is brought for
alleged injury to her reputation, privacy, identity, and goodwill, which are
found by this Court to be intangible personal chattels, which are derived
from the personal[-]property rights of her reputation, privacy, identity, and
goodwill. Under Trial Rule 75(A)(2) and the relevant case law[,] the
correct venue for suits concerning injury to said chattels is the [c]ounty
where they are regularly located or kept, and under Indiana’s recognized
[r]ule of mobile sequuntur persona[,] the location of suits of intangible
personal property is the legal domicile of the owner or Lake County. [Dr.
Kroczek] has brought her suit in Lake County, which is a [c]ounty of
[p]referred [v]enue per Trial Rule 75(A)(2). No [c]hange of [v]enue is to
be granted.
Id. at 9.
Belcher now appeals.
Discussion and Decision
Belcher contends that the trial court erred by denying his motion to transfer
venue.
We review factual findings linked to a trial court’s ruling on a motion
under Indiana Trial Rule 75(A) under a clearly erroneous standard, and rulings of law are
reviewed de novo. Id. Findings of fact are clearly erroneous when the record lacks any
evidence or reasonable inferences to support them. Coffman v. Olson & Co., P.C., 872
N.E.2d 145, 147 (Ind. Ct. App. 2007) (citation omitted).
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Trial Rule 75(A) allows a case to be filed in any county in Indiana. The rule
provides numerous preferred venues, such as “the county where the greater percentage of
individual defendants . . . resides,” T.R. 75(A)(1), any county in which all parties
stipulate as a preferred venue, T.R. 75(A)(6), or the county in which the plaintiff resides
if no other preferred venue exists, T.R. 75(A)(10). “It is the general spirit and policy of
the rules governing venue to give the defendant the right to have the action tried in the
county of his or her residence.” Salsbery Pork Producers, Inc. v. Booth, 967 N.E.2d 1(Ind. Ct. App. 2012) (citing State ex rel. Ind. State Bd. of Tax Comm’rs v. Ind. Chamber
of Commerce, Inc., 712 N.E.2d 992, 996 (Ind. Ct. App. 1999)). However, there is no
priority among Rule 75(A)’s subsections. Id. (citing Coffman, 872 N.E.2d at 147). 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. (citing Meridian Mut.
Ins. Co. v. Harter, 671 N.E.2d 861, 862-63 (Ind. 1996)).
The preferred-venue subsection at issue here is subsection (2), which establishes
preferred venue 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). Dr. Kroczek contends that Belcher damaged her
reputation, privacy, identity, and goodwill. She argues that these are chattels—
specifically, intangible personal chattels—under Trial Rule 75(A)(2).
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“Chattel” is defined as “[m]ovable or transferable property; personal property;
esp[ecially], a physical object capable of manual delivery and not the subject matter of
real property.” R & D Transp., Inc. v. A.H., 859 N.E.2d 332, 333 n.1 (Ind.
2006) (quoting Black’s Law Dictionary 251 (8th ed. 2004)). One type of chattel is a
personal chattel, which is defined as “a tangible good or an intangible right (such as a
patent).” Black’s Law Dictionary 251 (8th ed. 2004) (emphasis added). Trial Rule
75(A)(2) “does not distinguish between tangible and intangible chattels.” Phillips v.
Scalf, 778 N.E.2d 480, 483 (Ind. Ct. App. 2002).
We have identified other intangible personal chattels. In Phillips, we determined
that the right of publicity was an intangible personal chattel. Id. (“[T]he
term chattel includes an intangible right, such as a right of publicity.”). One year later, in
Bostic v. House of James, Inc., we concluded that a money judgment was an intangible
personal chattel. 784 N.E.2d 509, 512 (Ind. Ct. App. 2003) (“[W]e agree with the trial
court that a judgment is ‘in the nature of a chattel.’”) (citation omitted), trans. denied. In
reaching this conclusion, we noted that Indiana law allows a judgment holder to transfer
title to the judgment. Id. (“[Indiana Code section] 34-54-7-1 provides that ‘[j]udgments
and decrees of a court of record for the recovery of money may be assigned by the
plaintiff or complainant’ and ‘title to the judgment or decree’ then vests in the
assignee.”). Like Bostic, Phillips involved a transferable right—the right to publicity.1 A
patent—the example of an intangible personal chattel given in Black’s Law Dictionary—
1
2 J. Thomas McCarthy, The Rights of Publicity & Privacy § 10:13 (2d ed. 2011); see
also Restatement (Third) of Unfair Competition § 46 cmt. g (1995) (stating that “[t]he interest in the
commercial value of a person’s identity . . . is freely assignable to others”).
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is likewise transferrable.2 Here, Dr. Kroczek alleges injury to her reputation, privacy, and
identity, but none of these things are transferrable. For this reason, they are inherently
different from patents, money judgments, and publicity rights. We therefore conclude
that they are not chattels.3
Goodwill, however, may qualify as chattel. There are two types of goodwill:
enterprise goodwill and professional goodwill. Enterprise goodwill is a business asset
that is “generally transferrable to others and has a value to others.” Jay Myoung Yoon v.
Sunsook Yoon, 711 N.E.2d 1265, 1269 (Ind. 1999). Enterprise goodwill is subject to
division in dissolution proceedings. Id. “In contrast, the goodwill that depends on the
continued presence of a particular individual is a personal asset, and any value that
attaches to a business as a result of this ‘personal goodwill’ represents nothing more than
the future earning capacity of the individual and is not divisible.” Id.But goodwill cannot serve as the basis for preferred venue in this case. Dr.
Kroczek’s complaint does not allege an injury to enterprise goodwill: enterprise goodwill
is a business asset, and Dr. Kroczek has not claimed any ownership in a business or
2
“The right to apply for a patent belongs to the inventor or inventors, but it may be transferred.
After grant, patents also may be transferred wholly or partly in various ways, such as:
1. They may be assigned or licensed;
2. They may pass under a will or intestacy; or
3. They may be subject to mortgage or execution.”
1 World Intellectual Prop. Rights & Remedies § 13:14 (2014).
3
Moreover, Trial Rule 75(A)(2) refers to in rem actions. Actions in rem “[i]nvolv[e] or
determin[e] the status of a thing, and therefore the rights of persons generally with respect to that thing.”
Black’s Law Dictionary 809 (8th ed. 2004); see also R & D Transp. Inc., 59 N.E.2d at 333. Dr.
Kroczek’s claims are more accurately described as injuries to her person than injuries to a thing. And
with certain exceptions—such as automobile accidents—Trial Rule 75(A) does not confer preferred
venue in the county where injury to a person occurs.
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dentistry practice. And if Dr. Kroczek’s claim that her “personal and business
reputations have been and continue to be damaged” implicates goodwill, it merely refers
to her future earning capacity, which is a non-transferrable personal asset. We therefore
conclude that Dr. Kroczek has not established preferred venue in Lake County based on
Indiana Trial Rule 75(A)(2), and Belcher is entitled to transfer venue to Marion County
based on his residence. See T.R. 75(A)(1).
Reversed.
NAJAM, J., and BROWN, J., concur.
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