MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be
                                                                  Mar 26 2019, 10:35 am
regarded as precedent or cited before any
court except for the purpose of establishing                           CLERK
                                                                   Indiana Supreme Court
the defense of res judicata, collateral                               Court of Appeals
                                                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Richard K. Milam                                        Donald W. Shelmon
Lebanon, Indiana                                        Rensselaer, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the                                    March 26, 2019
Guardianship of Jennie K.                               Court of Appeals Case No.
Moore, Adult                                            18A-GU-2804
                                                        Interlocutory Appeal from the
Earl L. Moore,                                          Jasper Circuit Court
                                                        The Honorable John D. Potter,
Appellant-Interested Person,
                                                        Judge
        v.                                              Trial Court Cause No.
                                                        37C01-1705-GU-491
Nancy J. Pruitt (Guardian),
Appellee-Petitioner.



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-GU-2804 | March 26, 2019             Page 1 of 7
                                             Case Summary
[1]   Earl L. Moore brings this interlocutory appeal of the trial court’s denial of his

      motion to transfer venue of the Guardianship of Jennie K. Moore (“the

      Guardianship”) from Jasper County to Boone County. Concluding that the

      trial court abused its discretion in declining to transfer venue of the proceeding

      to Boone County, we reverse and remand with instructions to transfer.


                                 Facts and Procedural History
[2]   On May 30, 2017, Nancy Pruitt filed a petition to establish guardianship over

      the person and estate of ninety-year-old Jennie K. Moore in the Jasper Circuit

      Court. The petition alleged that Jennie is unable to maintain and care for her

      person and financial affairs due to her advanced age. The petition alleged that

      Jennie resides in a nursing home in Lebanon, which is in Boone County. The

      petition further alleged that Pruitt resides in Boone County. The petition stated

      that Jennie’s closest blood relative is her son Earl. On the same date the

      petition for guardianship was filed, counsel for the Guardianship also filed a

      consent to guardianship and to the appointment of Pruitt as guardian of

      Jennie’s person and estate, signed by Earl. The petition for guardianship was

      approved by the trial court and the Guardianship was established on June 7,

      2017.


[3]   In November 2017, Earl filed an appearance as an interested person in the

      guardianship proceeding, and in December 2017 he filed a petition to remove

      Pruitt as guardian and a withdrawal of his consent to guardianship. Thereafter,


      Court of Appeals of Indiana | Memorandum Decision 18A-GU-2804 | March 26, 2019   Page 2 of 7
      on April 3, 2018, Earl filed a motion to transfer venue of the guardianship

      proceeding to Jennie’s county of residence, Boone County. The trial court held

      a hearing regarding venue on April 18, 2018, and subsequently denied Earl’s

      motion to transfer. After numerous continuances of several other motions filed

      by the parties, on November 4, 2018, Earl filed a second motion to transfer

      venue to Boone County. Concluding that, in consenting to the guardianship

      petition filed in Jasper Circuit Court, Earl had consented to the Jasper Circuit

      Court’s exercise of jurisdiction over the guardianship proceeding, the trial court

      denied the motion to transfer venue. This interlocutory appeal ensued.


                                     Discussion and Decision
[4]   Earl asserts that the trial court abused its discretion in declining to transfer

      venue of the guardianship proceeding from Jasper County to Boone County.

      We agree.


[5]   A trial court’s order on a motion to transfer venue is an interlocutory order and

      is reviewed under an abuse of discretion standard. In re Adoption of W.M., 55

      N.E.3d 386, 387 (Ind. Ct. App. 2016), trans. denied. An abuse of discretion

      occurs if the trial court’s decision is clearly against the logic and effect of the

      facts and circumstances before the court, or if the trial court has misinterpreted

      the law. Id. We review any 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), trans. denied.


      Court of Appeals of Indiana | Memorandum Decision 18A-GU-2804 | March 26, 2019   Page 3 of 7
[6]   As a general matter, Indiana Trial Rule 75(A) governs venue requirements in

      Indiana. Am. Family Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 973 (Ind. 2006).

      The procedure in probate, however, is separate and distinct from the procedure

      for civil proceedings prescribed in the trial rules. MacLeod v. Guardianship of

      Hunter, 671 N.E.2d 177, 178 (Ind. Ct. App. 1996), trans. denied (1997). “It is

      only where the probate code does not provide an adequate and complete mode

      of procedure that it is proper to resort to the rules of pleading and practice

      applicable to civil actions.” Id. Regarding guardianship proceedings, Indiana

      Code Section 29-3-2-2 provides an adequate and complete mode of procedure

      for determining the proper county of venue. Id. at 178-79. Specifically, Indiana

      Code Section 29-3-2-2(a)(1)(A) provides that the venue for the appointment of a

      guardian or for protective proceedings, if the alleged incapacitated person or

      minor resides in Indiana, is in the county where the alleged incapacitated

      person or minor resides.1


[7]   Accordingly, here, proper venue for the guardianship proceeding is restricted to

      the county where Jennie resides, which is Boone County. In twice denying

      Earl’s requests to transfer venue to Boone County, the trial court apparently

      confused the legal concepts of jurisdiction and venue. As this Court has

      recognized, jurisdiction involves a court’s power to hear a particular group of

      cases; venue, on the other hand, connotes the proper situs for the trial of an



      1
        Indiana Trial Rule 75(A)(8) recognizes the existence of statutes that specify a preferred venue. MacLeod,
      671 N.E.2d at 179; In re Trust Created Under Agreement Dated Sept. 19, 1983, By Johnson, 469 N.E.2d 768, 772
      (Ind. Ct. App. 1984), trans. denied (1985).

      Court of Appeals of Indiana | Memorandum Decision 18A-GU-2804 | March 26, 2019                     Page 4 of 7
      action. Cabanaw v. Cabanaw, 648 N.E.2d 694, 697 (Ind. Ct. App. 1995). These

      concepts are not interchangeable, and one cannot be used as a substitute for the

      other. Id. Relying on In re B.J.N., 19 N.E.3d 765 (Ind. Ct. App. 2014), the trial

      court concluded that a person who consents to the appointment of the guardian

      in a particular court, as Earl did here, waives any objection to that court’s

      exercise of jurisdiction over the proceeding. Id. at 769. However, the Jasper

      Circuit Court’s jurisdiction over the guardianship proceeding is not at issue, and

      therefore B.J.N. is not controlling. Indeed, it is well settled that the filing of a

      case in a county in which venue does not properly reside does not divest the

      trial court of subject matter jurisdiction. In re Adoption of L.T., 9 N.E.3d 172,

      177 (Ind. Ct. App. 2014) (citing State ex rel. Knowles v. Elkhart Circuit Court, 256

      Ind. 256, 258, 268 N.E.2d 79, 80 (1971)). Still, the fact that the Jasper Circuit

      Court has the authority to hear this case and to properly issue orders thus far

      has nothing to do with whether venue can and should be transferred to Boone

      County.


[8]   Our thorough review of the record reveals that, in declining to transfer venue to

      Boone County, the trial court improperly focused on its jurisdiction, which, as

      we stated above, is not at issue. The trial court also improperly focused on the

      timing of Earl’s request to transfer venue, with the Guardianship having

      seemingly convinced the court that the time for it to consider and/or reconsider

      the issue had long passed. To the contrary, our legislature has made clear that

      proper venue in a guardianship proceeding remains an important consideration

      by the trial court throughout the pendency of the guardianship. Indiana Code


      Court of Appeals of Indiana | Memorandum Decision 18A-GU-2804 | March 26, 2019   Page 5 of 7
      29-3-2-2(c) instructs in relevant part that if it appears to the court “at any time”

      that: “(1) the proceeding was commenced in the wrong county; … or (4) it

      would be in the best interest of the incapacitated person or the minor and the

      property of the minor or the incapacitated person; the court may order the

      proceeding … transferred to another court in Indiana.” (Emphasis added.) The

      Jasper Circuit Court has been notified that this proceeding was unquestionably

      commenced in the wrong county. Furthermore, because Jennie, the bulk of her

      assets, and Pruitt are all located in Boone County, it is patently clear that it

      would be in the best interest of Jennie and her property that the proceeding be

      transferred to Boone County.2 In short, we can think of no reason why this case

      should not be transferred.


[9]   Under the circumstances presented, we conclude that the trial court abused its

      discretion in declining to transfer venue of the guardianship proceeding to

      Boone County. Therefore, we reverse and remand to the trial court with

      instructions to “order the proceeding, together with all papers, files, and a

      certified copy of all orders,” transferred to Boone County as provided by

      Indiana Code Section 29-3-2-2(c).




      2
        We find it significant that, during a hearing conducted by the trial court, counsel for the Guardianship
      conceded that neither Jennie nor her property, nor Pruitt have any connection to Jasper County. He offered
      no explanation for why he filed the petition for guardianship in Jasper County despite the clear direction of
      the probate code that the proceeding be filed in Jennie’s county of residence.

      Court of Appeals of Indiana | Memorandum Decision 18A-GU-2804 | March 26, 2019                     Page 6 of 7
[10]   Reversed and remanded.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-GU-2804 | March 26, 2019   Page 7 of 7
