FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
Salsbery Pork Producers, Inc. and DAVID W. STONE IV
Richard K. Wilson: Stone Law Office & Legal Research
Anderson, Indiana
SCOTT P. SULLIVAN
SHEILA M. SULLIVAN SAMUEL L. JACOBS
Flynn & Sullivan Jacobs Law, LLC
Indianapolis, Indiana Indianapolis, Indiana
Tipton County Commissioners and Tipton
FILED
County Highway Department:
JAMES S. STEPHENSON Apr 10 2012, 9:11 am
IAN L. STEWART
Stephenson Morow & Semler
CLERK
Indianapolis, Indiana of the supreme court,
court of appeals and
tax court
IN THE
COURT OF APPEALS OF INDIANA
SALSBERY PORK PRODUCERS, INC., )
RICHARD K. WILSON, TIPTON COUNTY )
COMMISSIONERS, TIPTON COUNTY )
HIGHWAY DEPARTMENT, CHAD BERGIN, )
STATE OF INDIANA, INDIANA DEPARTMENT )
OF TRANSPORTATION, )
)
Appellants-Defendants, )
)
vs. ) No. 49A02-1110-CT-983
)
LATINA BOOTH, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION CIRCUIT COURT
The Honorable Louis F. Rosenberg, Judge
Cause No. 49C01-1108-CT-029920
April 10, 2012
OPINION - FOR PUBLICATION
BAILEY, Judge
Case Summary
Latina Booth (“Booth”), a resident of Tipton County, was injured in a motor vehicle
accident on County Road 1100 in Tipton County. Booth filed suit against Salsbery Pork
Producers, Inc. (“Salsbery”), Richard K. Wilson (“Wilson”), the Tipton County
Commissioners and the Tipton County Highway Department (collectively, “the County”),
Chad Bergin (“Bergin”), and the State of Indiana and the Indiana Department of
Transportation (“the State”). Salsbery, Wilson, and the County (collectively, “the Tipton
County defendants”) moved for transfer of venue from Marion County to Tipton County.
The trial court denied the motion, and this interlocutory appeal followed.
We reverse and remand.
Facts and Procedural History
We take our statement of facts from Booth’s complaint.
Booth was a resident of Tipton County. Bergin was a resident of Howard County. On
September 20, 2010, Bergin was driving on County Road 1100 in Tipton County with Booth
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as his passenger. Wilson, a resident of Tipton County, was driving a tractor within the scope
of his employment with Salsbery, which was headquartered in Tipton County, and pulled
onto County Road 1100. Wilson’s tractor struck Bergin’s car. Booth was seriously injured.
On August 3, 2011, Booth filed suit in Marion County and alleged a negligence claim
against Bergin, Wilson, and Salsbery. Booth also alleged that the State and County were
negligent in the design, maintenance, and signage of County Road 1100.
On August 17, 2011, the County moved to dismiss Booth’s case. On September 6,
2011, new counsel for the County moved to withdraw the motion. The trial court denied the
motion on September 7, 2011. On the next day, in typewritten text, the court granted the
County’s motion to withdraw the prior motion, but in a handwritten comment indicated that it
had denied the motion but would “entertain a renewed motion” on other grounds. (App. 30.)
On August 26, 2011, Bergin answered the complaint and asserted cross-claims against
the other defendants, but did not challenge the Marion County venue.
On September 23, 2011, the State answered the complaint, asserted numerous
affirmative defenses, and denied Booth’s allegations as to the design, maintenance, and
signage of County Road 1100. The State did not move to dismiss the case or challenge the
Marion County venue.
On September 28, 2011, the County again moved to dismiss the case for improper
venue, claiming that the State was “joined solely for the purpose of establishing venue in
Marion County” and requesting transfer of the case to Tipton County. (App. 38-41.) Among
the documents submitted in support of the motion was an affidavit averring that County Road
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1100 was controlled solely by Tipton County on the date of the collision. On October 5,
2011, Salsbery and Wilson joined the County’s motion. The trial court denied the County’s
motion on October 14, 2011, and denied Salsbery’s and Wilson’s motion on October 19,
2011.
This interlocutory appeal followed pursuant to Appellate Rule 14, which provides for
interlocutory appeal of right where a trial court’s decision grants or denies transfer of a case
under Trial Rule 75. Ind. Appellate Rule 14(A)(9).
Discussion and Decision
Waiver
Booth contends that the Tipton County defendants waived their venue challenge. Our
review of the record does not reveal that Booth claimed or argued this point to the trial court.
Failure to raise an issue before the trial court waives that issue on appeal, Orta v. State, 940
N.E.2d 370, 376 (Ind. Ct. App. 2011), trans. denied.1
Waiver notwithstanding, Booth argues that the failure of one defendant to object to
preferred venue constitutes waiver of the issue by all defendants. In support of this
proposition, Booth cites State ex rel. Kenamond v. Warmuth, 179 W. Va. 230, 366 S.E.2d
738 (1988). We believe the greater weight of authority in federal and state courts tilts to the
contrary; and, Booth directs us to no Indiana case law that supports her contention. See, e.g.,
Ware v. United Rentals (N. Am.), Inc., 2010 WL 1374583, *2 (E.D. Tex. 2010) (concluding
that a defendant that objected to venue had not waived that challenge where a codefendant
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Booth’s contention that the Tipton County defendants failed to establish that Salsbery’s place of business is in
Tipton County was not raised before the trial court, and thus is waived.
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failed to file a motion or answer objecting to venue); Schultz v. MMI Products, Inc., 30 A.3d
1224, 1229 (Pa. Super. Ct. 2011) (holding that the failure of three defendants to object to
venue did not waive a fourth defendant’s objection and therefore affirming the trial court’s
decision to transfer venue).
We decline Booth’s invitation to conclude that the Tipton County defendants’ venue
challenge was waived. We therefore turn to the merits of the appeal.
Standard of Review
The Tipton County defendants contend that venue in Marion County is improper
because the State was improperly joined in the action.
We review factual findings on an appeal from a ruling on a motion for transfer of
venue for clear error, with conclusions of law reviewed de novo; where a paper record is
used to draw factual conclusions, those conclusions are also reviewed de novo. Am. Family
Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 973 (Ind. 2006). We review decisions on
misjoinder under our standard of review for an abuse of discretion. Mercantile Nat. Bank of
Hammond v. Underwood, 906 N.E.2d 881, 886 (Ind. Ct. App. 2009), trans. denied. An
abuse of discretion occurs when the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before it, or if the trial court has erred on a matter of
law. Am. Family, 857 N.E.2d at 973.
Misjoinder
We turn first to the question of misjoinder under Trial Rule 21. The Rule provides
that misjoinder of a party “is not ground for dismissal of an action.” T.R. 21(A). “Subject to
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its sound discretion,” whether sua sponte or upon a party’s timely motion, the trial court
“may order parties dropped or added at any stage of the action and on such terms as are just
and will avoid delay.” Id.; Mitchell v. Stevenson, 677 N.E.2d 551, 557 (Ind. Ct. App. 1997),
trans. denied. Where venue is dependent upon a particular claim or a claim against a
particular party, and that claim “appears from the pleadings, or proves to be a sham or made
in bad faith,” the trial court “may transfer the proceedings to the proper court.” T.R. 21(B).
The Tipton County defendants contend that Booth misjoined the State as a sham for
the purpose of obtaining a Marion County venue. The Tipton County defendants rely upon
our decision in Mishler v. State, 730 N.E.2d 229 (Ind. Ct. App. 2000), for the proposition that
the State has no duty of care because it does not control County Road 1100 and that, as a
result, the State was misjoined. In Mishler, the State moved for summary judgment and
designated the relinquishment agreement between it and the City of Elkhart as evidence that
it had no duty of care for the design, maintenance, and conditions of a roadway. Id. at 230.
Here, the County produced an affidavit indicating that it, and not the State, had control
over County Road 1100, and argued that the State was misjoined and should therefore be
dropped from the case. In response, Booth characterized the Tipton County defendants’
motion as one pursuing summary judgment on behalf of another party, and argued that
subsequent proceedings might lead to the discovery of evidence that would establish liability
of the State for the conditions, design, or maintenance of the roadway. But Booth did not
introduce any evidence contrary to the Tipton County defendants’ affidavit averring that the
County, and not the State, had control over County Road 1100. Booth did not argue that the
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averments were false. Nor did Booth request a continuance to obtain discovery on the
question of the State’s possession or control of County Road 1100. Booth instead rested on
the pleadings and argument alone.
Given the affidavit—which amounted to the only facts and circumstances before the
trial court aside from the pleadings—and procedural posture of the case, we conclude that the
trial court abused its discretion when it did not order the State dropped from the case. Absent
more, however, we cannot agree with the characterization by the Tipton County defendants
that joining the State was a sham or in bad faith and solely for the purpose of obtaining a
Marion County venue. The Tipton County defendants have not established that Booth joined
the State with knowledge that the State did not control County Road 1100, because the
evidence that established the County’s control came only after the Tipton County defendants
moved for transfer of venue. Thus, the trial court did not abuse its discretion when it failed
to conclude that Booth’s joinder of the State was a sham or motivated by bad faith.
Venue
Turning now to the question of venue, Trial Rule 75 provides that “[a]ny case may be
venued, commenced and decided in any court in any county” unless a party files a pleading or
motion to dismiss under Trial Rule 12(B)(3) because the case is not in a preferred venue.
T.R. 75(A). The rule goes on to provide numerous preferred venues, including “the county
where the greater percentage of individual defendants … resides,” T.R. 75(A)(1), the county
in which a motor vehicle accident occurred, T.R. 75(A)(3), the county where a defendant
organization has its principal office, T.R. 75(A)(4), the county where a government unit has
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its principal office or where a claim against such an agency arose, T.R. 75(A)(5), 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.” 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 the subsections establishing preferred venue.”
Coffman v. Olson & Co., P.C., 872 N.E.2d 145, 147 (Ind. Ct. App. 2007). Thus, there may
be multiple preferred venues in a given case, and a motion to transfer venue under Trial Rule
12(b)(3) cannot be granted when an action has been filed in a preferred venue. Meridian
Mut. Ins. Co. v. Harter, 671 N.E.2d 861, 862-63 (Ind. 1996).
As pleaded, there are two preferred venues in this case. The greatest percentage of the
defendants reside in or have their headquarters in Tipton County, as does the plaintiff. Cf.
T.R. 75(A)(1) & 75(A)(4).2 The collision occurred in Tipton County. Cf. T.R. 75(A)(3).
The State is headquartered in Marion County. Cf. T.R. 75(A)(5). Although the greatest
number of defendants is in Tipton County, Booth filed suit in Marion County.
Yet under these circumstances, where the County has submitted evidence and
argument taking upon itself the duty of care at issue, and where—before the pleadings were
closed—the State should have been dropped from the case as a party, we cannot conclude
that a Marion County venue is appropriate. Moreover, a Marion County venue for the case is
2
Bergin resides in Clinton County, but is the only defendant who does so.
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discordant with the general purpose of the venue rules, which is to allow trial in the county
where the events giving rise to a dispute or where the greatest amount of evidence with
respect to the dispute will likely be found. See, e.g., R & D Transport, Inc. v. A.H., 859
N.E.2d 332, 335 (Ind. 2006) (observing that Indiana has “long had special venue rules for
motor vehicle accidents” when concluding that a case was properly venued in the county of
an accident rather than where chattels damaged in the accident were customarily kept);
Harter, 671 N.E.2d at 863 (concluding that a rule that provides for venue in the county of an
accident prevents “a lawsuit over an accident in a remote county based solely on the location
of an insurer’s home office”).
Thus, because the State should have been dropped as a party, Marion County is not a
preferred venue. The collision that injured Booth occurred in Tipton County; Booth, the
majority of the defendants, and the County all reside in or are headquartered in Tipton
County. We therefore reverse the trial court and remand with instructions to transfer this
action to Tipton County.
Conclusion
The trial court abused its discretion when it did not drop the State from the case in
light of uncontested evidence that the County, and not the State, had possession and control
over County Road 1100. Because the State was not properly joined, and because the Tipton
County defendants moved for transfer of venue under Trial Rule 12(B)(3), Marion County is
not a preferred venue for the case, and we remand this case to the trial court for transfer to
Tipton County.
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Reversed and remanded.
BAKER, J., and DARDEN, J., concur.
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