Cynthia Morrison, Individually and on behalf of Ernest Morrison v. Ricardo Vasquez, M.D., and Vascular Center & Vein Clinic of Southern Indiana, Kevin O'Connor, M.D.

FILED
Aug 28 2018, 8:21 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Mary A. Findling Karl L. Mulvaney
Findling Park Conyers & Woody, P.C. Nana Quay-Smith
Indianapolis, Indiana Bingham Greenebaum Doll LLP
Indianapolis, Indiana
David S. Strite
Rachel K. Dalton
O’Bryan, Brown & Toner, PLLC
Louisville, Kentucky
IN THE
COURT OF APPEALS OF INDIANA
Cynthia Morrison, Individually August 28, 2018
and on behalf of Ernest Court of Appeals Case No.
Morrison, Deceased, 18A-CT-376
Appellants-Plaintiffs, Appeal from the Marion Superior
Court
v. The Honorable David J. Dreyer,
Judge
Ricardo Vasquez, M.D., and Trial Court Cause No.
Vascular Center & Vein Clinic of 49D10-1712-CT-46774
Southern Indiana,
Appellees-Defendants,
Kevin O’Connor M.D., Fort
Wayne Radiology Association,
LLC, Amar Pinto M.D., Premier
Healthcare, LLC, Mohamed
Nassar, M.D., and Indiana
University Health Bloomington,
Court of Appeals of Indiana | Opinion 18A-CT-376 | August 28, 2018 Page 1 of 14
Inc. d/b/a Bloomington
Hospital, Inc.,
Defendants.
Brown, Judge.
[1] In this interlocutory appeal, Cynthia Morrison (“Morrison”), individually and
on behalf of Ernest Morrison (“Ernest”), deceased, appeals from the trial
court’s order that the case be transferred from Marion County to Monroe
County. We affirm.
Procedural History
[2] On December 20, 2017, Morrison filed a complaint for medical malpractice in
Marion County naming as defendants Dr. Ricardo Vasquez and Vascular
Center & Vein Clinic of Southern Indiana (together, “Appellees”), as well as
Dr. Kevin O’Connor, Fort Wayne Radiology Association, LLC, Dr. Amar
Pinto, Premier Healthcare, LLC, Dr. Mohamed Nassar, and Indiana University
Health Bloomington, Inc. d/b/a Bloomington Hospital, Inc., (“Bloomington
Hospital”). 1 The complaint alleged in part that the care, advice, and treatment
1
According to the Indiana Secretary of State’s record for Bloomington Hospital, a copy of which was
attached as an exhibit to Morrison’s objection to Appellees’ motion for change of venue and which is file-
stamped January 18, 2018, Bloomington Hospital’s registered agent was Mary Beth Clause, Esq., with an
address on 10th Street in Indianapolis. The filing also shows a “principal office address” for Bloomington
Hospital on Second Street in Bloomington, Indiana. Appellant’s Appendix Volume II at 62.
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of the defendants fell below the acceptable standard of care, proximately
resulting in Ernest’s death.
[3] On January 17, 2018, Appellees filed a Motion to Transfer Venue requesting
transfer of the case to the Monroe Superior Court pursuant to Ind. Trial Rule
75(A). Appellees argued that Marion County does not meet preferred venue
requirements and the greater percentage of defendants reside in Monroe
County. They argued in part that Ernest presented to Dr. Vasquez’s office in
Bloomington in November 2013 and underwent a procedure at Bloomington
Hospital in December 2013; Ernest presented to Bedford Hospital on May 27,
2014, where a CT was performed; Dr. O’Connor in Fort Wayne remotely
interpreted the CT; Dr. Pinto agreed to consult; Dr. Nassar, the hospitalist at
Bloomington Hospital, accepted care of Ernest and Ernest was transferred from
Bedford Hospital to Bloomington Hospital on the evening of May 27, 2014; and
Ernest expired at Bloomington Hospital on May 28, 2014. Appellees further
argued that they, as well as Dr. Pinto and Premier Healthcare, LLC, reside in
Monroe County; Dr. Nasser resides in Marion County; Bloomington Hospital
is primarily located in Monroe County; and Dr. O’Connor and Fort Wayne
Radiology Association, LLC, are located in Allen County, and noting that five
of the eight named defendants are located in Monroe County.
[4] On January 18, 2018, Morrison filed an objection to Appellees’ motion to
transfer venue and argued that Marion County is a county of preferred venue
because the registered office and agent of Bloomington Hospital, one of the
defendants, are located in Marion County. In support of her objection,
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Morrison cited to Trial Rule 75(A)(4) and Am. Family Ins. Co. v. Ford Motor Co.,
857 N.E.2d 971 (Ind. 2006). On February 19, 2018, the trial court entered an
Order Granting Transfer of Venue which ordered that the case be transferred to
the Monroe Superior Court pursuant to Trial Rule 75(A). Morrison now brings
this interlocutory appeal.
Discussion
[5] The issue is whether the trial court erred in granting Appellees’ motion to
transfer venue from Marion County to Monroe County. We review factual
findings on an appeal from a ruling on a motion for transfer of venue for clear
error and review conclusions of law de novo. Arkla Indus., Inc. v. Columbia St.
Partners, Inc., 95 N.E.3d 194, 196 (Ind. Ct. App. 2018) (citing Am. Family Ins.
Co. v. Ford Motor Co., 857 N.E.2d 971, 973 (Ind. 2006)), trans. denied. Where
factual determinations are made from a paper record, those determinations are
also reviewed de novo. Id.
[6] Ind. Trial Rule 75(A) allows a case to be filed in any county in Indiana. Id.
However, the rule also sets forth criteria establishing ten “preferred” venues. Id.
at 196-197. Trial Rule 75(A) provides in part:
Preferred venue lies in:
(1) 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; or
*****
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(4) the county where either the principal office of a defendant
organization is located or the office or agency of a
defendant organization or individual to which the claim
relates or out of which the claim arose is located, if one or
more such organizations or individuals are included as
defendants in the complaint; . . . .
[7] Trial Rule 75(A) does not create a priority among the subsections establishing
preferred venue, and there may be multiple preferred venues in a given case.
Arkla Indus., 95 N.E.3d at 197. “A motion to transfer venue cannot be granted
when an action has been filed in a preferred venue, but if the complaint is not
filed in a preferred venue, the court is required to transfer the case to a preferred
venue upon a proper request from a party.” Id. (citing Am. Family Ins. Co., 857
N.E.2d at 974).
[8] The Indiana Supreme Court has observed that “[p]referred venue is located in
counties where information is readily available, where relevant land and
personal property can be found, where witnesses can be easily brought to court,
and where the litigants reside or hold office” and that litigants “benefit from
relative certainty about the preferred forum and from the savings in time and
expense that such rules provide.” Randolph Cty. v. Chamness, 879 N.E.2d 555,
557 (Ind. 2008).
[9] Morrison argues that Marion County is a county of preferred venue under Trial
Rule 75(A)(4). She contends that, pursuant to the Indiana Supreme Court’s
opinion in Am. Family Ins. Co., the registered agent and office of a domestic
corporation provide the basis for venue under Rule 75(A)(4), that the address of
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Bloomington Hospital’s registered agent was an address in Marion County, and
thus that Marion County is a county of preferred venue. Morrison also argues
that the complaint was filed on December 20, 2017, that venue is determined as
of the time the complaint was filed, and that Ind. Code § 23-0.5-4-12, 2 which
became effective on January 1, 2018, does not apply to this case.
[10] Appellees maintain that Marion County is not a county of preferred venue.
They argue that Am. Family Ins. Co. applies only to foreign corporations without
a physical office in Indiana. Appellees further maintain that Ind. Code § 23-0.5-
4-12 should be applied because they filed their motion to transfer venue after
the statute became effective and, alternatively, that it is a procedural and
remedial statute which should be applied retroactively. They contend that
venue statutes are procedural rather than substantive in nature and that Ind.
Code § 23-0.5-4-12 was a legislative response to Am. Family Ins. Co.
[11] In reply, Morrison maintains that Am. Family Ins. Co., by its language, applies
equally to domestic and foreign corporations and its holding is not limited to
corporations without a physical office in Indiana. She further maintains that
Ind. Code § 23-0.5-4-12 is ineffective under Trial Rule 75(D) and there is no
compelling reason to apply the statute retroactively.
2
Ind. Code § 23-0.5-4-12 (eff. Jan. 1, 2018) provides: “The designation or maintenance in Indiana of a
registered agent does not by itself create the basis for personal jurisdiction over the represented entity in
Indiana. The address of the agent does not determine venue in an action or a proceeding involving the
entity.”
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[12] The parties do not dispute that Monroe County is a county of preferred venue
under Trial Rule 75(A)(1). Thus, if Marion County is not a county of preferred
venue, the trial court was required to transfer the case to a preferred venue upon
request. See Arkla Indus., 95 N.E.3d at 197.
[13] Trial Rule 75(A)(4) provides for preferred venue in “the county where . . . the
principal office of a defendant organization is located.” In Am. Family Ins. Co.,
the Indiana Supreme Court addressed preferred venue under Rule 75(A)(4)
where the plaintiff filed suit in Marion County against Ford Motor Company,
which had no offices in Indiana but maintained a registered office and agent in
Marion County. 857 N.E.2d at 972. The Court found that the term “principal
office” in Rule 75(A)(4) refers to a domestic or foreign corporation’s registered
office in Indiana and thus that Marion County was a county of preferred venue.
Id. Subsequently, in CTB, Inc. v. Tunis, the plaintiffs filed suit in Marion County
against CTB, Inc., an Indiana corporation with a registered agent and office in
Kosciusko County, CTB requested transfer of venue to Kosciusko County, and
the trial court denied the request. 95 N.E.3d 185, 186 (Ind. Ct. App. 2018),
trans. denied. This Court cited Am. Family Ins. Co., noted that CTB’s principal
office under Rule 75(A)(4) was in Kosciusko County, and found that the court
should have transferred the case to Kosciusko County. Id. at 189. Our opinion
in CTB specifically acknowledged that revisions to Indiana’s corporation law
took effect on January 1, 2018, and that the parties did not argue that the
revisions were applicable. Id. at 187. We also note that, in CTB, the complaint
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was filed on May 9, 2017, CTB filed its motion to transfer venue on June 20,
2017, and the court entered its order denying the motion on September 8, 2017.
[14] We observe that, unlike in Am. Family Ins. Co., where defendant Ford Motor
Company had no offices in Indiana but maintained a registered office and agent
in Marion County, see Am. Family Ins. Co., 857 N.E.2d at 972, the Indiana
Secretary of State’s record for Bloomington Hospital shows a “principal office
address” for Bloomington Hospital on Second Street in Bloomington, Indiana.
Appellant’s Appendix Volume II at 62. We further observe that, unlike in CTB,
where defendant CTB was an Indiana corporation based in Kosciusko County
and which had a registered agent in that county, see CTB, 95 N.E.3d at 186-187,
Bloomington Hospital’s principal office address, according to its filing with the
Indiana Secretary of State, is in Monroe County. Also, unlike in CTB, where
the trial court made a determination regarding venue well before Ind. Code §
23-0.5-4-12 became effective and the parties did not argue the statute was
applicable, in this case Bloomington Hospital filed its motion to transfer venue
after the statute became effective, and Appellees argue the statute is applicable.
We also note that the greater number of defendants are located in Monroe
County, a medical procedure and the decedent’s death occurred in Monroe
County, medical records and fact witnesses are in Monroe County, and Cynthia
Morrison does not live in Marion County.
[15] We find that Ind. Code § 23-0.5-4-12 (eff. Jan. 1, 2018) is applicable in this case.
The statute provides in part: “The address of the agent does not determine
venue in an action or a proceeding involving the entity.” This Court has stated
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that the venue status of a county is determined when an action is commenced
by the filing of a complaint. See Painters Dist. Council 91, 906 N.E.2d at 257
(citing Shelton v. Wick, 715 N.E.2d 890, 894 (Ind. Ct. App. 1999), trans. denied).
Also, statutes generally will not be applied retroactively absent strong and
compelling reasons. Bourbon Mini-Mart, Inc. v. Gast Fuel & Servs., Inc., 783
N.E.2d 253, 260 (Ind. 2003). However, an exception to this general rule exists
for remedial or procedural statutes. Ind. Bureau of Motor Vehicles v. Watson, 70
N.E.3d 380, 385 (Ind. Ct. App. 2017) (citing Martin v. State, 774 N.E.2d 43, 44
(Ind. 2002)). Although statutes and rules that are procedural or remedial may
be applied retroactively, they are not required to be. Id. A remedial statute is
intended to cure a defect or mischief that existed in a prior statute and will be
applied retroactively to carry out its legislative purpose unless to do so violates a
vested right or constitutional guaranty. Bourbon Mini-Mart, 783 N.E.2d at 260.
[16] The provision of Ind. Code § 23-0.5-4-12 related to the determination of venue
is procedural in nature. If new legislation changes only a mode of procedure in
the law while providing a remedy substantially similar to the existing one and
does not violate vested rights, “it will be applied to all cases pending and
subsequent to its effective date.” Borgman v. State Farm Ins. Co., 713 N.E.2d
851, 855 n.1 (Ind. Ct. App. 1999) (emphasis added) (citation omitted), trans.
denied; see also Hayden v. State, 771 N.E.2d 100, 102 (Ind. Ct. App. 2002)
(“Procedural, adjective or remedial law is that portion of the law which
prescribes the method of enforcing a right or obtaining a redress for the invasion
of that right. Substantive law, on the other hand, is that portion of the law
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which creates, defines and regulates rights.”), trans. denied. We further observe
that an entry in American Jurisprudence provides in part:
“Venue” refers to the place of trial or the locality where an action
may be properly brought. . . . Venue is not a jurisdictional
requirement or substantive right but is merely a procedural matter
designed for the convenience of the parties, judicial efficiency,
and allocating judicial resources. . . .
77 AM. JUR. 2D Venue § 1 (footnotes omitted) (emphasis added). Also, an entry
titled “Retroactive application of venue statute” provides in part:
Normally, venue provisions are considered procedural in nature,
not substantive, and courts generally apply them retroactively. . . . It
is the rule in a number of jurisdictions that a statute fixing venue
is applicable even to actions pending on the effective date of the statute.
77 AM. JUR. 2D Venue § 7 (footnotes omitted) (emphases added).
[17] The provision of Ind. Code § 23-0.5-4-12 related to the determination of venue
is procedural. Although the complaint here was filed on December 20, 2017,
Ind. Code § 23-0.5-4-12 became effective twelve days later on January 1, 2018,
Appellees filed their motion to transfer venue on January 17, 2018, and the
court granted the motion on February 19, 2018. Thus, this action was pending,
and the court had not yet made a determination regarding venue, as of the date
Ind. Code § 23-0.5-4-12 became effective. Morrison has not established that she
has been deprived of any substantive right. We conclude that the venue
provision of Ind. Code § 23-0.5-4-12 is applicable. See Capps v. State, 268 Ind.
614, 618, 377 N.E.2d 1338, 1340 (1978) (finding that the procedural mechanism
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in the Indiana criminal rules governing change of venue did not deprive the
appellant of a substantive right such as a fair trial before an impartial jury);
Borgman, 713 N.E.2d at 855-856 (finding, in response to an argument that a bad
faith statute should not be applied retroactively, that the statute was procedural
and merely set forth the proper forum for certain claims, and also noting the
statute simply designated the proper forum for bringing enumerated claims and
did not operate to strip the plaintiffs of an established right of recourse”); see also
Gardner v. Gardner, 43 N.C. App. 678, 681, 260 S.E.2d 116, 118 (1979)
(“Generally, a statute fixing venue is applicable even to actions pending on the
effective date of the statute.”) (citing 77 AM. JUR. 2d Venue § 1), aff’d.
[18] Further, we do not find Morrison’s argument that Ind. Code § 23-0.5-4-12 is
ineffective under Trial Rule 75(D) to be persuasive. Trial Rule 75(D) provides
in part: “Any provision of these rules and any special or general statute relating
to venue, the place of trial or the authority of the court to hear the case shall be
subject to this rule, and the provisions of any statute fixing more stringent rules
thereon shall be ineffective.” As explained above, Trial Rule 75(A)(4) provides
that preferred venue lies in the county where “the principal office of a defendant
organization” is located, and Ind. Code § 23-0.5-4-12 provides that the address
of the registered agent does not determine venue. Thus, Ind. Code § 23-0.5-4-
12 does not, by its express terms, fix more stringent rules related to venue than
the terms of Trial Rule 75(A)(4).
[19] To the extent Am. Family Ins. Co. may have determined that the term “principal
office” in subsection (4) of the rule referred to a domestic corporation’s
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“registered office,” that determination was premised on Indiana corporation
law which has since been considerably amended. Specifically, the Court in Am.
Family Ins. Co. observed that, at the time Rule 75 was adopted in 1970,
Indiana’s corporation law required that corporations maintain a “principal
office in this state” where an agent for service of process could be found and
that, “[w]hen the Business Corporation Act was adopted in 1986, what had
formerly been called the ‘principal office in this state’ was designated the
‘registered office.’ I.C. § 23-1-24-1 (2004).” 3 857 N.E.2d at 974-975. The
Court expressly found that, “[b]y adopting the term ‘registered office,’ the
Business Corporation Act did not intend to change the venue rules for foreign
corporations.” Id. at 975 (emphasis added). Thus Am. Family Ins. Co. was
based on the corporation law adopted in 1986 and the fact the statutory
provisions added by the legislature at that time did not intend to change the
venue rules. However, Indiana’s corporation law was significantly amended by
Pub. Law No. 118-2017 (eff. Jan. 1, 2018). Among other changes, the law
3
Ind. Code § 23-1-24-1 (2004), subsequently repealed, provided:
Each corporation must continuously maintain in Indiana:
(1) a registered office; and
(2) a registered agent, who must be:
(A) an individual who resides in Indiana and whose business office is identical with the
registered office;
(B) a domestic corporation or not-for-profit domestic corporation whose business office is
identical with the registered office; or
(C) a foreign corporation or not-for-profit foreign corporation authorized to transact
business in Indiana whose business office is identical with the registered office.
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repealed all of Ind. Code §§ 23-1-24, including Ind. Code § 23-1-24-1 upon
which Am. Family Ins. Co. depended, and added the new article of Ind. Code §§
23-0.5 which contains §§ 23-0.5-4 governing the designation and maintenance
of registered agents, including Ind. Code § 23-0.5-4-12 which, unlike the
provisions adopted in 1986, expressly intends a change to the venue rules. 4 See
Pub. Law No. 118-2017, § 5 (enacting Ind. Code §§ 23-0.5), § 11 (repealing Ind.
Code §§ 23-1-24). Thus the Indiana corporation law upon which Am. Family
Ins. Co. was centered has been extensively amended, and the specific statutory
provision relied upon in that case has been repealed and Ind. Code § 23-0.5-4-
12 has been added. We decline to find that Ind. Code § 23-0.5-4-12’s provision
that the address of a registered agent does not determine venue fixes a more
stringent rule related to venue than Trial Rule 75 or is ineffective pursuant to
Trial Rule 75(D).
[20] Pursuant to Ind. Code § 23-0.5-4-12, the address of Bloomington Hospital’s
registered agent does not determine venue and Marion County is not a county
of preferred venue for purposes of Trial Rule 75(A)(4) on that basis.
Accordingly, we do not disturb the trial court’s order that the case be
transferred to the Monroe Superior Court.
4
Ind. Code § 23-0.5-4-12 is modeled after Section 1-414 of the Uniform Business Organizations Code and
Section 15 of the Uniform Model Registered Agents Act. See Uniform Business Organization Code (Last
Amended 2011), § 1-414; Model Registered Agents Act (2006) (Last Amended 2011), § 15. The Comment to
Section 15 of the Model Registered Agents Act states in part: “This section makes clear that the address of a
registered agent does not determine venue.”
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Conclusion
[21] For the foregoing reasons, we affirm the trial court’s February 19, 2018 Order
Granting Transfer of Venue.
[22] Affirmed.
Bailey, J., and Crone, J., concur.
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