Peggy L. Sallee v. James L. Barrett and Martha A. Barrett (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Mar 03 2017, 6:06 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES
James P. Buchanan Jeffrey A. Boggess
Buchanan & Buchanan Greencastle, Indiana
Lebanon, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Peggy L. Sallee, March 3, 2017
Appellant, Court of Appeals Case No.
06A01-1606-PL-1308
v. Appeal from the Boone Superior
Court
James L. Barrett and Martha A. The Honorable Matthew C.
Barrett, Kincaid, Judge
Appellees Trial Court Cause No.
06D01-1603-PL-130
Vaidik, Chief Judge.
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Case Summary
[1] The trial court granted the defendants’ motion for change of venue from Boone
County to Putnam County because the defendants resided in Putnam County.
The plaintiff appeals, arguing that preferred venue lies in Boone County
pursuant to Indiana Trial Rule 75(A)(2) because her complaint contains claims
“relating to” land there. Because the plaintiff’s complaint concerns only debt,
preferred venue does not lie in Boone County pursuant to Trial Rule 75(A)(2).
We therefore affirm the trial court.
Facts and Procedural History
[2] Peggy L. (Barrett) Sallee and James L. Barrett got divorced in January 1977. In
July 1977,1 Peggy executed a quitclaim deed that made James the fee-simple
owner of real estate in Boone County (Peggy and James had previously owned
the real estate as tenants in common). The quitclaim deed was subject to an
agreement between the parties that upon the sale of the real estate, Peggy and
James would equally divide the net proceeds. Appellant’s App. Vol. II pp. 8-9
(Ex. A attached to complaint). The quitclaim deed was recorded in the Boone
County recorder’s office.
1
Peggy’s complaint and brief state that this event occurred in July 1979; however, the quitclaim deed
attached to the complaint says July 1977.
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[3] In May 2013, Peggy asked James to sell the real estate or give her one-half of
the appraised value because she was moving to Kentucky. According to an
undated “Receipt,” James gave Peggy $10,000 “as partial payment of the
selling price” due to Peggy “pursuant to the agreement between [Peggy and
James] contained in the quitclaim deed recorded . . . in the office of the
Recorder of Boone County . . . .” Ex. 1. The Receipt explained that the
balance due “shall be determined as the amount of the actual selling price
minus [$10,000] paid to her this date, and shall be due at the closing.” Id.
[4] On May 7, 2013, Peggy executed a “Release of Equitable Lien” that was
recorded in the Boone County recorder’s office. Appellant’s App. Vol. II pp. 9-
10 (Ex. B attached to complaint). In the release, Peggy acknowledged that the
“equitable lien and agreement to share proceeds of sale” in favor of her and
against James “has been paid and satisfied in full” and “said lien and
agreement to share proceeds of sale is hereby released this 7th day of May,
2013.” Id. (emphasis added).
[5] At some point, James and his new wife, Martha, became owners of the Boone
County real estate as tenants by the entireties. They sold the real estate over a
year after Peggy executed the release, on September 15, 2014, for $184,000. Id.
at 13. The net proceeds were $169,040.15. Id. Peggy later found out about the
sale of the Boone County real estate; she claims that she was not given any
proceeds from the sale.
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[6] In 2016, Peggy—a Kentucky resident—filed a complaint against James and
Martha—Putnam County residents—in Boone County. Peggy alleged three
counts: conversion, breach of contract, and failure of consideration. For the
third count, Peggy claimed that James’ “failure to render the promised
performance is a failure of consideration,” rendering her May 2013 Release of
Equitable Lien “void and of no force and effect.” Id. at 8. James and Martha
moved for change of venue from Boone County to Putnam County because
they resided there. See Ind. Trial Rule 75(A)(1) (explaining that “preferred
venue lies in . . . the county where the greater percentage of individual
defendants included in the complaint resides . . .”). Following a hearing, the
trial court granted James and Martha’s motion for change of venue.
[7] Peggy now pursues this interlocutory appeal as of right. See Ind. Appellate Rule
14(A)(8).
Discussion and Decision
[8] Peggy contends that the trial court erred in transferring venue from Boone
County to Putnam County. She claims that preferred venue lies in Boone
County pursuant to Trial Rule 75(A)(2) because her complaint contains claims
“relating to” land there.
[9] A lawsuit may be commenced in any county in Indiana. Ind. Trial Rule 75(A);
R & D Transp., Inc. v. A.H., 859 N.E.2d 332, 333 (Ind. 2006). However, upon
the filing of an appropriate motion, the trial court must transfer the case to the
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county selected by the party first filing such motion if: (1) the court where the
action was initially filed is not a “preferred venue” as defined by Trial Rule
75(A) and (2) the county selected by the party filing the motion is a county of
preferred venue. T.R. 75(A). If a lawsuit is filed in a county of preferred venue,
the case cannot be transferred to another county, even if that other county is
also a county of preferred venue. R & D, 859 N.E.2d at 333.
[10] Trial Rule 75(A)(2) provides 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[.]
(Emphases added). The Indiana 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. v.
Cotten, 634 N.E.2d 1351, 1354 (Ind. Ct. App. 1994) (quotation omitted); see also
R & D, 859 N.E.2d at 335.
[11] A claim relates to the land under Trial Rule 75(A)(2) if there is a sufficient
nexus between the land and the underlying action. Diesel Constr. Co., 634
N.E.2d at 1354. “[T]he nexus test will be affected by such factors as, but not
limited to, whether the acts giving rise to liability occurred there, and whether
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examination of the site may be necessary to resolve the dispute.” Id. For
example, in Diesel Construction Co., we remanded, noting:
If the trial court finds that Cotten’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. (emphasis added); see also Skeffington v. Bush, 846 N.E.2d 761, 763 (Ind. Ct.
App. 2006) (“Skeffington’s claims are based on the quality of the work
performed on the land, i.e., the hydro-seeding by Bush. Although Skeffington
seeks to recover monetary damages, her legal theory is based on the alleged
poor quality of Bush’s work.”); Trs. of Purdue Univ. v. Hagerman Constr. Corp.,
736 N.E.2d 819, 821 (Ind. Ct. App. 2000) (“[A]lthough Purdue’s claims involve
Hagerman’s asserted breach of contract, this legal theory is based on the alleged
poor quality of Hagerman’s work [in constructing a building on campus] insofar
as such work affected land in Tippecanoe County.”), trans. denied.
[12] Peggy argues that her claim for “restitution of a security interest in the form of
an equitable lien” relates to the Boone County real estate. Appellant’s Br. p. 9.
We disagree. Peggy does not explain how the “equitable lien” would be
enforceable against the real estate as opposed to the proceeds from the sale of
the real estate. Instead, Peggy’s claims concern merely a question of debt. The
real estate is not at issue; indeed, Peggy quitclaimed her interest in the real
estate in 1977. The only determinations to be made concern the amount of
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money that James allegedly owes Peggy based on their agreement to split the
net proceeds whenever he sold the real estate. Cf. Guzzo v. Goodrich Quality
Theaters, Inc., 679 N.E.2d 166, 169 (Ind. Ct. App. 1997) (“However, this action
does not concern merely a question of debt. Rather, the complaint includes a
claim for specific performance, which directly ‘relates’ to the land because
ownership of the land is at issue. If the appellee prevails on its claim, the land
would be conveyed to the proper party. This potential for conveyance causes
the relief to be in rem. The appellee wants the property, not merely monetary
damages.” (footnote omitted)), reh’g denied, trans. denied. Because the claims in
Peggy’s complaint concern only debt that James allegedly owes her, preferred
venue does not lie in Boone County pursuant to Trial Rule 75(A)(2).2
Accordingly, the trial court did not err in transferring venue from Boone
County to Putnam County.
[13] Affirmed.
Bradford, J., and Brown, J., concur.
2
At the change-of-venue hearing, Peggy’s attorney discussed adding the current owners of the Boone County
real estate to the lawsuit. Tr. p. 14; see also Appellant’s App. Vol. II p. 21 (proposed amended complaint
asking the trial court to “appoint a personal representative to sell the land at public sale . . . .”). But as it now
stands, the complaint has not been amended. Appellant’s App. Vol. II p. 2 (CCS entry noting that new court
can consider whether to allow amended complaint).
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