                                                                       FILED
                                                                  Apr 27 2018, 8:35 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEYS FOR APPELLANT,                                   ATTORNEY FOR APPELLEES
PITTSBORO CHRISTIAN CHURCH,                                Nicholas C. Deets
D/B/A SCRIBBLES MINISTRY OF                                Hovde Dassow & Deets LLC
PITTSBORO CHRISTIAN CHURCH                                 Indianapolis, Indiana
Robert B. Thornburg
Julia Blackwell Gelinas
Maggie L. Smith
Frost Brown Todd LLC
Indianapolis, Indiana
Katherine J. Noel
Noel Law
Kokomo, Indiana
ATTORNEYS FOR APPELLANT,
SCRIBBLES LLC
Scott P. Sullivan
Flynn & Sullivan PC
Indianapolis, Indiana
ATTORNEYS FOR APPELLANT,
CHRISTEEN MICHAEL
Jan N. Campbell
Jeffrey R. Oberlies
Leeuw Oberlies & Campbell
Indianapolis, Indiana
ATTORNEYS FOR APPELLANT,
DEBBIE SPURLOCK
Kyle Michael Baker
Salma Naji Qaddourah
McNeely, Stephenson
Shelbyville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Opinion 49A04-1706-CT-1434 | April 27, 2018                  Page 1 of 12
      Scribbles, LLC, Pittsboro                                  April 27, 2018
      Christian Church, d/b/a                                    Court of Appeals Case No.
      Scribbles Ministry of Pittsboro                            49A04-1706-CT-1434
      Christian Church, Christeen                                Appeal from the Marion Superior
      Michael, and Debbie Spurlock,                              Courts
      Appellants/Defendants,                                     The Honorable James A. Joven,
                                                                 Judge
              v.                                                 Trial Court Cause No.
                                                                 49D13-1702-CT-7313
      Camden “Jax” Wedgewood, by
      next of friend Brian Scott
      Wedgewood, Hannah Jade Hill,
      and Camden Riley Wedgewood,
      Appellees/Plaintiffs.



      Pyle, Judge.


                                         Statement of the Case
[1]   In this interlocutory appeal, Scribbles, LLC (“Scribbles”); Pittsboro Christian

      Church d/b/a Scribbles Ministry of Pittsboro Christian Church (“the Church”);

      Christeen Michael (“Michael”); and Debbie Spurlock (“Spurlock”) (collectively

      “the Defendants”) appeal the trial court’s denial of their motion to transfer

      venue to Hendricks County in a negligence action filed against them in Marion

      County by infant Camden “Jax” Wedgewood (“Infant Wedgewood”), by his

      next friend, his grandfather, Brian Scott Wedgewood (“Grandfather”); Hannah

      Jade Hill (“Mother”); and Camden Riley Wedgewood (“Father”) (collectively

      (“the Plaintiffs”)). Because Hendricks County is a preferred venue and Marion

      County is not, the trial court erred in denying the Defendants’ motion to

      Court of Appeals of Indiana | Opinion 49A04-1706-CT-1434 | April 27, 2018              Page 2 of 12
      transfer venue to Hendricks County. We therefore reverse and remand with

      instructions for the trial court to grant the Defendants’ motion and transfer this

      case to Hendricks County.


[2]   We reverse and remand with instructions.


                                                       Issue
              The sole issue for our review is whether the trial court erred in
              denying the Defendants’ motion to transfer venue.


                                                       Facts
[3]   Scribbles and the Church operate a child care ministry located in Hendricks

      County. Michael is an infant caregiver at Scribbles, and Spurlock is the

      director. Both women are Hendricks County residents. Infant Wedgewood,

      Grandfather, Mother, and Father are also Hendricks County residents.


[4]   In January 2016, Infant Wedgewood began attending Scribbles. Shortly

      thereafter, he suffered a catastrophic brain injury. The following year, the

      Plaintiffs filed a two-count complaint in the Marion Superior Court. The first

      count was a negligence action against Scribbles, the Church, Michael, and

      Spurlock. The second count was a claim for a declaratory judgment against the

      Indiana Family and Social Services Administration (FSSA). Specifically, the

      Plaintiffs explained that Infant Wedgewood was a beneficiary of the Indiana

      Medicaid Plan (“the Plan”) and asked the trial court to determine whether the




      Court of Appeals of Indiana | Opinion 49A04-1706-CT-1434 | April 27, 2018   Page 3 of 12
      Plan had a lien on the Plaintiffs’ recovery and, if so, the amount of the lien.1

      The Defendants all raised the affirmative defense of improper venue under

      Indiana Trial Rule 75 in their respective answers. They all also alleged that it

      was the Plaintiffs who were at fault for Infant Wedgewood’s injuries. FSSA did

      not respond to the complaint.


[5]   In May 2017, the Defendants filed a joint motion to transfer venue wherein

      they asked the trial court to transfer venue from Marion County to Hendricks

      County because Marion County was not a preferred venue. The Plaintiffs

      responded that Marion County was a preferred venue pursuant to Trial Rule

      75(A)(5) because FSSA was a governmental organization located in Marion

      County. The trial court concluded that “Marion County [was] a preferred

      venue and the Court lack[ed] the authority to transfer the case to Hendricks

      County” and denied the Defendants’ motion. (App. 11). The Defendants

      appeal.


                                                      Decision
[6]   The Defendants argue that the trial court erred in denying their motion to

      transfer venue to Hendricks County. Specifically, they contend that the trial




      1
        We note that FSSA has a statutory right to assert a lien against any recovery that the Plaintiffs might obtain.
      See IND. CODE § 12-15-8-1 et seq. (setting forth the specific procedures that FSSA must follow to perfect its
      lien). FSSA may also waive its right to a lien. I.C. § 12-15-8-9. Here, at the time the Plaintiffs filed their
      complaint, FSSA had not performed any of the statutory prerequisites to perfecting a lien.

      Court of Appeals of Indiana | Opinion 49A04-1706-CT-1434 | April 27, 2018                           Page 4 of 12
      court should have granted their motion because Marion County is not a

      preferred venue, and Hendricks County is. We agree with both contentions.


[7]   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. Am. Family Ins.

      Co. v. Ford Motor Co., 857 N.E.2d 971, 973 (Ind. 2006). Where factual

      determinations are made from a paper record, however, those determinations

      are also reviewed de novo. Id.


[8]   Trial Rule 75(A), which governs preferred venue in Indiana, provides, in

      relevant part, as follows:


              Any case may be venued, commenced and decided in any court
              in any county, except, that upon the filing of a pleading or a
              motion to dismiss allowed by Rule 12(B)(3), the court, from
              allegations of the complaint or after hearing evidence thereon or
              considering affidavits or documentary evidence filed with the
              motion or in opposition to it, shall order the case transferred to a
              county or court selected by the party first properly filing such
              motion or pleading if the court determines that the county or
              court where the action was filed does not meet preferred venue
              requirements or is not authorized to decide the case and that the
              court or county selected has preferred venue and is authorized to
              decide the case. 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

              (2) 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

      Court of Appeals of Indiana | Opinion 49A04-1706-CT-1434 | April 27, 2018     Page 5 of 12
        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; or

        (3) the county where the accident or collision occurred, if the
        complaint includes a claim for injuries relating to the operation of
        a motor vehicle or a vehicle on railroad, street or interurban
        tracks; or

        (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; or

        (5) the county where either one or more individual plaintiffs
        reside, the principal office of a governmental organization is
        located, or the office of a governmental organization to which the
        claim relates or out of which the claim arose is located, if one or
        more governmental organizations are included as defendants in
        the complaint; or

        (6) the county or court fixed by written stipulations signed by all
        the parties named in the complaint or their attorneys and filed
        with the court before ruling on the motion to dismiss; or

        (7) the county where the individual is held in custody or is
        restrained, if the complaint seeks relief with respect to such
        individual’s custody or restraint upon his freedom; or

        (8) the county where a claim in the plaintiff’s complaint may be
        commenced under any statute recognizing or creating a special or
        general remedy or proceeding; or




Court of Appeals of Indiana | Opinion 49A04-1706-CT-1434 | April 27, 2018     Page 6 of 12
               (9) the county where all or some of the property is located or can
               be found if the case seeks only judgment in rem against the
               property of a defendant being served by publication; or

               (10) the county where either one or more individual plaintiffs
               reside, the principal office of any plaintiff organization or
               governmental organization is located, or the office of any such
               plaintiff organization or governmental organization to which the
               claim relates or out of which the claim arose is located, if the case
               is not subject to the requirements of subsections (1) through (9) of
               this subdivision or if all the defendants are nonresident
               individuals or nonresident organizations without a principal
               office in the state.

[9]    The Indiana Supreme Court has explained the role of this rule in determining

       preferred venue as follows:


               Trial Rule 75 governs venue requirements in Indiana. It contains
               ten subsections, each setting forth criteria establishing ‘preferred’
               venue. A case or complaint may be filed in any county in
               Indiana, 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. The rule does not create a priority
               among the subsections establishing preferred venue. Id. If the
               complaint is filed in a county of preferred venue, then the trial
               court has no authority to transfer the case based solely on
               preferred venue in one or more other counties.


       Id. at 973-74. The preferred venue status of a given county can only be

       determined as of the time a complaint is filed. Painters Dist. Counsel 91 v. Calvert

       Enterprises Electronic Services, Inc., 906 N.E.2d 254, 257 (Ind. Ct. App. 2009).


[10]   The Indiana Supreme Court further explained preferred venue as follows in

       Randolph County v. Chamness, 879 N.E.2d 555, 557 (Ind. 2008):

       Court of Appeals of Indiana | Opinion 49A04-1706-CT-1434 | April 27, 2018   Page 7 of 12
                Preferred 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. Reliable preferred venue
                rules increase judicial efficiency because a judge can focus on the
                merits of a dispute rather than its relocation to a more convenient
                forum. Litigants likewise benefit from relative certainty about
                the preferred forum and from the savings in time and expense
                that such rules provide.


[11]   Here, although the alleged injury to Infant Wedgewood occurred in Hendricks

       County, and all of the Plaintiffs and Defendants were either located in or lived

       in Hendricks County, the Plaintiffs filed their complaint in Marion County.

       The Defendants filed a motion to transfer venue to Hendricks County, which

       the trial court denied. On appeal, the Defendants argue that “Indiana law does

       not allow preferred venue to be asserted simply by including a separate count

       seeking a declaratory judgment action against a governmental organization

       with an attenuated interest in the underlying litigation.” (Defendants’ Br. at 9).

       The Defendants further contend that the “possible assertion of a lien by FSSA

       in the present case lacks any connection to the underlying negligence action

       and, therefore, cannot establish preferred venue.” (Defendants’ Br. at 9). We

       agree.


[12]   First, it has already been held that the Uniform Declaratory Judgment Act does

       not create a basis for preferred venue requirements. Jasper Cty. Bd. of Cty. Comr’s

       v. Monfort, 663 N.E.2d 1166, 1167 (Ind. Ct. App. 1996). Second, the

       Defendants are correct that a “county’s ‘incidental’ connection to the claims

       asserted will not establish preferred venue . . . .” (Defendants’ Br. at 12).
       Court of Appeals of Indiana | Opinion 49A04-1706-CT-1434 | April 27, 2018   Page 8 of 12
[13]   For example, in R & D Trans., Inc. v. A.H., 859 N.E.2d 332 (Ind. 2006), Joseph

       Hazel (“the truck driver”) was driving a tractor-trailer owned by R & D

       Transport when he was involved in an accident that injured A.H. The accident

       occurred in Dearborn County. The truck driver’s residence and R & D’s

       principal place of business were in Hendricks County. A.H.’s mother filed a

       negligence action in Porter County where A.H. resided. Her complaint alleged

       the “destruction and loss of A.H.’s ‘orthotic devices, clothing, and other

       chattels regularly located in Porter County.’” Id. at 333. The truck driver and

       R & D filed a motion to transfer venue, which the trial court denied. This

       Court affirmed the denial on direct appeal. R & D Trans. v. A.H., No. 64A05-

       0502-CV-95, (Ind. Ct. App. Sept. 28, 2005).


[14]   The Indiana Supreme Court granted transfer. In support of her argument that

       preferred venue was found in Porter County, A.H.’s mother relied on Trial

       Rule 75(A)(2), which provides, in relevant part, that preferred venue lies in the

       county where the chattels or some part of them are regularly kept, if the

       complaint includes a claim for injuries relating to such chattels. According to

       A.H.’s mother, because “A.H. suffered in the accident, the destruction and loss

       of ‘orthotic devices, clothing, and other chattels’ and those chattels were

       ‘regularly located’ in Porter County, Porter County [was] a county of preferred

       venue under the literal reading of [T.R. 75(A)(2)].” R & D, 859 N.E.2d at 334.


[15]   The defendants responded that:


               [T]he clear purpose and spirit of Rule 75(A) taken as a whole
               [was] that incidental damage to chattels in a motor vehicle
       Court of Appeals of Indiana | Opinion 49A04-1706-CT-1434 | April 27, 2018   Page 9 of 12
                accident [was] not enough to create preferred venue under [T.R.
                75(A)(2)]; rather, Dearborn County [was] a county of preferred
                venue under subsection [T.R. 75(A)(3)] because that [was] ‘the
                county where the accident or collision occurred’ and Hendricks
                County [was] a county of preferred venue under [T.R. 75(A)(4)]
                because that is the county where ‘the principal office’ of R & D
                Transport [was] located.

       Id.


[16]   The Indiana Supreme Court agreed with the defendants and concluded that,

       although technically permitted under Trial Rule 75(A)(2), basing preferred

       venue on the existence of A.H.’s chattels in that instance was inappropriate

       because those chattels, such as the orthotics, “played no role in the accident

       itself or in the claims of the lawsuit that [Mother] filed. Rather, her claim

       involved a motor vehicle accident; the location that played the important role

       was that of the actual collision.” Id. The Indiana Supreme Court explained

       that to decide otherwise would defeat the purpose of Trial Rule 75(A) and

       “allow T.R. 75(A)(2) to serve as the means to bypass the clear intent of the

       rule’s overall text.”2 Id. at 336.


[17]   We reached a similar result in Salsberry Pork Producers, Inc. v. Booth, 967 N.E.2d

       1 (Ind. Ct. App. 2012). Booth was a passenger involved in a motor vehicle

       accident in Tipton County. The driver of the other vehicle was a resident of




       2
         The Indiana Supreme Court concluded that this Court’s prior decisions that broadly interpreted Trial Rule
       75(A)(2) were “contrary to the intent of T.R. 75(A) and [were] disproved.” R & D, 859 N.E.2d at 336-37
       (citing Swift v. Pernat, 828 N.E.2d 444 (Ind. Ct. App. 2005) and Halsey v. Smeltzer, 722 N.E.2d 871 (Ind. Ct.
       App. 2000)).

       Court of Appeals of Indiana | Opinion 49A04-1706-CT-1434 | April 27, 2018                        Page 10 of 12
       Tipton County acting within the scope of his employment with a Tipton

       County employer. Booth filed a negligence action against both drivers, the

       employer, the Tipton County Commissioners, and the Indiana Department of

       Transportation (“IDOT). Booth filed the action in Marion County based upon

       the count against IDOT, which is headquartered there. The other defendants

       filed a motion to transfer the case to Tipton County, which the trial court

       denied.


[18]   On appeal, this Court pointed out that a “Marion County venue for the case

       [was] discordant with the general purpose of the venue rules, which [was] 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 [would] likely be

       found.” Id. at 6. We noted that the “collision that injured Booth occurred in

       Tipton County; Booth, the majority of the defendants, and the County all

       reside[d] in or [were] headquarter[ed] in Tipton County,” and concluded that

       Marion County was not a preferred venue. Id. We therefore reversed the trial

       court and remanded the case with instructions to transfer it to Tipton County.

       Id.


[19]   Here, as in R & D and Salsbery, FSSA has an incidental connection to the

       subject matter of the litigation, which is insufficient to support preferred venue.

       Specifically, as in R & D, FSSA played no role in the underlying litigation,

       which involved an alleged catastrophic brain injury to an infant. Further, the

       alleged injury occurred in Hendricks County. In addition, all of the Plaintiffs

       and Defendants resided in or were headquartered in Hendricks County. Under

       Court of Appeals of Indiana | Opinion 49A04-1706-CT-1434 | April 27, 2018   Page 11 of 12
       these circumstances, we agree with the Defendants that Marion County is not a

       preferred venue. See Salsberry, 967 N.E.2d at 6. To decide otherwise would

       defeat the purpose of T.R. 75(A) and allow T.R. 75(A)(5) to serve as the means

       to bypass the clear intent of the rule’s overall text. See R & D¸ 859 N.E.2d at

       336.


[20]   Having determined that Marion County is not a county of preferred venue, we

       must determine whether Hendricks County is. Our review of Trial Rule 75(A),

       as well as the facts of this case, reveal that Hendricks County is a preferred

       venue pursuant to T.R. 75(A)(1) because all of the Defendants reside in or are

       located in Hendricks County. Hendricks County is also a preferred venue

       pursuant to T.R. 75(A)(4) because both Scribbles and the Church are located in

       Hendricks County.


[21]   Because Hendricks County is a preferred venue and Marion County is not, the

       trial court erred in denying the Defendants’ motion to transfer venue to

       Hendricks County. We therefore reverse and remand with instructions for the

       trial court to grant the Defendants’ motion and transfer this case to Hendricks

       County.


[22]   Reversed and remanded with instructions.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1706-CT-1434 | April 27, 2018   Page 12 of 12
