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.




Court of Appeals of Indiana | Memorandum Decision 06A01-1606-PL-1308 | March 3, 2017       Page 1 of 7
                                            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.

      Court of Appeals of Indiana | Memorandum Decision 06A01-1606-PL-1308 | March 3, 2017              Page 2 of 7
[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.




      Court of Appeals of Indiana | Memorandum Decision 06A01-1606-PL-1308 | March 3, 2017   Page 3 of 7
[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


      Court of Appeals of Indiana | Memorandum Decision 06A01-1606-PL-1308 | March 3, 2017   Page 4 of 7
       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


       Court of Appeals of Indiana | Memorandum Decision 06A01-1606-PL-1308 | March 3, 2017   Page 5 of 7
       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

       Court of Appeals of Indiana | Memorandum Decision 06A01-1606-PL-1308 | March 3, 2017   Page 6 of 7
       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).

       Court of Appeals of Indiana | Memorandum Decision 06A01-1606-PL-1308 | March 3, 2017                     Page 7 of 7
