                                                                         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.

      Court of Appeals of Indiana | Opinion 18A-CT-376 | August 28, 2018                               Page 2 of 14
      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,

      Court of Appeals of Indiana | Opinion 18A-CT-376 | August 28, 2018       Page 3 of 14
      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

                                                     *****

      Court of Appeals of Indiana | Opinion 18A-CT-376 | August 28, 2018           Page 4 of 14
              (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

      Court of Appeals of Indiana | Opinion 18A-CT-376 | August 28, 2018               Page 5 of 14
       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.”


       Court of Appeals of Indiana | Opinion 18A-CT-376 | August 28, 2018                                    Page 6 of 14
[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




       Court of Appeals of Indiana | Opinion 18A-CT-376 | August 28, 2018       Page 7 of 14
       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

       Court of Appeals of Indiana | Opinion 18A-CT-376 | August 28, 2018        Page 8 of 14
       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

       Court of Appeals of Indiana | Opinion 18A-CT-376 | August 28, 2018         Page 9 of 14
       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

       Court of Appeals of Indiana | Opinion 18A-CT-376 | August 28, 2018               Page 10 of 14
       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

       Court of Appeals of Indiana | Opinion 18A-CT-376 | August 28, 2018           Page 11 of 14
“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.

Court of Appeals of Indiana | Opinion 18A-CT-376 | August 28, 2018                                    Page 12 of 14
       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.”

       Court of Appeals of Indiana | Opinion 18A-CT-376 | August 28, 2018                             Page 13 of 14
                                                     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.




       Court of Appeals of Indiana | Opinion 18A-CT-376 | August 28, 2018    Page 14 of 14
