MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Jun 28 2019, 9:26 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT
Jeffrey A. Boggess
Greencastle, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Regal Homes & Restoration,                               June 28, 2019
LLC, and Scott Williams,                                 Court of Appeals Case No.
Appellants-Plaintiffs,                                   18A-PL-1067
                                                         Appeal from the Hendricks
        v.                                               Superior Court
                                                         The Honorable Rhett M. Stuard,
Richard Swenke,                                          Judge
Appellee-Defendant.                                      Trial Court Cause No.
                                                         32D02-1801-PL-3



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019                    Page 1 of 11
                                Case Summary and Issue
[1]   In 2017, Regal Homes & Restoration, LLC (“Regal Homes”) and Richard

      Swenke entered into a contract in which Regal Homes agreed to repair fire

      damage on Swenke’s property located in Hendricks County. In 2018, Swenke

      filed a complaint in Hendricks County for declaratory judgment against Regal

      Homes alleging breach of contract. Regal Homes filed a motion to change

      venue to Putnam County, alleging Hendricks County was not a county of

      preferred venue. Swenke filed an objection and argued that Hendricks County

      was a preferred venue under Trial Rule 75(A)(2). The trial denied the motion

      and Regal Homes filed a motion to correct error, which the trial court also

      denied. Regal Homes appeals, presenting one issue for our review, which we

      restate as whether the trial court abused its discretion by denying Regal Homes’

      motion for change of venue because Hendricks County was not a county of

      preferred venue under Trial Rule 75(A)(2). Concluding the trial court did not

      abuse its discretion because Hendricks County is a preferred venue, we affirm.



                            Facts and Procedural History
[2]   Swenke owns property in Danville, Hendricks County, Indiana. Regal Homes

      is a Tennessee limited liability company originally formed in January 2016 and

      registered as a foreign limited liability company with the Indiana Secretary of

      State. Regal Homes’ principal place of business is located in Putnam County,

      Indiana. Scott Williams is Regal Homes’ registered agent, whose address is

      also in Putnam County, Indiana.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019   Page 2 of 11
[3]   On March 27, 2017, Swenke and Regal Homes entered into a contract in which

      Regal Homes agreed to “[r]epair and/or replace all damages from fire

      damage[.]” Appendix of Appellant at 16. The contract stated, in part:


              1. Purchaser acknowledges that Regal Homes & Restoration
              may be subject to delays due to inclement weather and material
              shortages which are beyond the control of Regal [Homes].
              Purchaser hereby accepts any delays due to one or all of these
              circumstances in the construction process. Purchaser further
              agrees to pay to Regal Homes & Restoration an amount equal to
              20% of the total insurance estimate or Regal Homes &
              Restoration’s bid if not provided, should Purchaser cancel the
              contract for any reason after the 24 hour deadline.


      Id.


[4]   In August 2017, Swenke received his first distribution from the insurance

      company and contacted Regal Homes “to sign the check over to Regal Home[s]

      for the future work” it was going to perform. Id. at 10-11. However, Regal

      Homes did not return Swenke’s calls. Months later, on December 4, 2017,

      Swenke received a letter from Regal Homes indicating he owed $42,114.20 and

      offering a $12,000 discount if he paid the amount by December 15.


[5]   On January 5, 2018, Swenke filed his Verified Complaint for Declaratory

      Judgment in Hendricks County against Regal Homes and Williams alleging

      Regal Homes breached the contract. Specifically, he alleged that Regal Homes

      failed to perform the terms of the contract and, as a result, he was forced to

      obtain a new builder; Regal Homes failed to pay the subcontractor who did the

      demolition on the property; Regal Homes was shut down by Hendricks County

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019   Page 3 of 11
      for failing to obtain proper permits; there was no inclement weather that would

      have delayed Regal Homes’ work; no shortage of material was communicated

      to him “nor was the project even at a point of requiring material when Regal

      Home[s] stopped all communication”; and the contract failed to comply with

      the Indiana Home Improvement Act. Id. at 10. Swenke requested that the trial

      court enter a declaratory judgment that “due to Regal Homes[’] failure to

      perform under the terms of the March 27, 2017 Document, [he] does not have

      any obligations to Regal Homes.” Id. at 11.


[6]   Regal Homes and Williams filed a Motion for Change of Venue on March 13,

      2018, arguing that the “preferred venue,” pursuant to Trial Rule 75(A)(1), is

      Putnam County, the county where the greater percentage of the individual

      defendants reside. Swenke filed an objection and response to the motion,

      acknowledging that Putnam County is a preferred venue under the rule but

      arguing that Hendricks County is also a preferred venue pursuant to Trial Rule

      75(A)(2) because the land in question is located in Hendricks County. And

      because the matter was initially filed in a preferred venue, Swenke argued the

      trial court lacked authority to transfer the case. The trial court denied the

      motion for change of venue on April 3, 2018. Regal Homes and Williams

      subsequently filed a Motion to Correct Error arguing Putnam County is the

      preferred venue because Swenke’s complaint relates only to a debt, which is an

      insufficient nexus to the land under 75(A)(2). The trial court denied the motion

      and later dismissed Williams as a party. Regal Homes now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019   Page 4 of 11
                                Discussion and Decision
                                     I. Standard of Review
[7]   We begin by acknowledging that no appellee’s brief was filed on behalf of

      Swenke. When an appellee does not file a brief, this court is not required to

      advance arguments on the appellee’s behalf. Neal v. Austin, 20 N.E.3d 573, 575

      (Ind. Ct. App. 2014). We may reverse if the appellant presents a case of prima

      facie error; however, even when an appellee does not file a brief, questions of

      law are nonetheless reviewed de novo. Id.


[8]   A trial court’s ruling on a motion to transfer venue is reviewed for an abuse of

      discretion, which occurs if the trial court’s decision is clearly against the logic

      and effect of the facts and circumstances before it or it misinterprets the law.

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

      court’s factual findings linked to a motion under Trial Rule 75 are reviewed for

      clear error, and its rulings of law are reviewed de novo. Bagsby v. Snedeker, 93

      N.E.3d 1127, 1129 (Ind. Ct. App. 2018), trans. denied. “If factual

      determinations are based on a paper record, they are also reviewed de novo.”

      Am. Family Ins. Co., 857 N.E.2d at 973.


                            II. Motion for Change of Venue
[9]   Trial Rule 75 governs venue requirements in Indiana. Pursuant to Trial Rule

      75(A), any case may be filed in any county in Indiana, but each of its ten

      subsections set forth criteria establishing a preferred venue. Garrison v. Ford, 53

      N.E.3d 454, 455 (Ind. Ct. App. 2016). If a matter is not filed in a preferred
      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019   Page 5 of 11
       venue, the trial court must transfer the case to a preferred venue upon proper

       request from a party. Id. However, there is no priority among Rule 75(A)’s

       subsections. Belcher v. Kroczek, 13 N.E.3d 448, 451 (Ind. Ct. App. 2014). There

       may be multiple preferred venues in a given case, and a motion to transfer

       venue cannot be granted when an action has been filed in a preferred venue. Id.


[10]   At the trial court, the parties disputed whether Hendricks County was a

       preferred venue. Swenke contended it was, pursuant to subsection (2), which

       states 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[.]


       T.R. 75(A)(2) (emphasis added). The 1970 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., Inc. v. Cotten, 634 N.E.2d 1351, 1354 (Ind. Ct. App. 1994) (quotation

       omitted). Thus, when a complaint alleges a claim related to land, the county

       where the land is located is a preferred venue. Id.


[11]   We employ a “nexus test” to determine whether a claim relates to the land

       within the meaning of Trial Rule 75(A)(2): a claim relates to the land if there is


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019     Page 6 of 11
       a sufficient nexus between the land and the underlying action. Id. This nexus

       test is affected “by such factors as, but not limited to, whether the acts giving

       rise to liability occurred there, and whether examination of the site may be

       necessary to resolve the dispute.” Id. In Diesel Constr. Co., a panel of this court

       reversed and remanded the trial court’s denial of a motion to transfer venue and

       explained:


               If the trial court finds that [the plaintiff’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.; see also Bayless Specialties v. Affordable Housing, Inc., 637 N.E.2d 840, 841 (Ind.

       Ct. App. 1994) (holding that preferred venue was in the county where

       defendant’s principal place of business was located because plaintiffs’

       complaints were entitled “complaint on account stated” and alleged that

       defendant “failed and refused and continues to refuse to pay for . . . services and

       is thereby indebted . . .” to plaintiffs rendering them “merely requests for the

       repayment of debts”), trans. denied.


[12]   In Skeffington v. Bush, 846 N.E.2d 761, 763-64 (Ind. Ct. App. 2006), a panel of

       this court concluded that preferred venue was where land was located, finding

       that, even if a plaintiff seeks to recover monetary damages, if the underlying

       legal theory is based on the quality of work performed on the land, a sufficient

       nexus exists between the action and land to be “related to land.” There, the

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019   Page 7 of 11
       plaintiff filed a lawsuit alleging breach of contract, breach of warranty, and

       negligence in performance of the work in a contract to hydro-seed football

       fields. Id. at 762. In determining whether a nexus existed between the action

       and the land under Trial Rule 75(A)(2), this court concluded the plaintiff’s

       claims were based on the quality of work performed on the land in question:


               Although [the plaintiff] seeks to recover monetary damages, her
               legal theory is based on the alleged poor quality of [the
               defendant’s] work. . . . [Plaintiff] alleged [defendant] had
               “guaranteed that the grass he sowed would sprout and grow” but
               that he “failed to properly hydro-seed the fields and the grass did
               not grow. Because the grass did not grow, [plaintiff] alleges she
               had to “strip the fields of the nonconforming vegetation,”
               purchase sod, and have the sod installed on the football fields, all
               at her expense.


               We find a sufficient nexus between [plaintiff’s] action and the
               football fields [defendant] hydro-seeded for [plaintiff’s] complaint
               to allege[] claims related to land [under Trial Rule 75(A)(2)].


       Id. at 763-64 (emphasis added) (internal citations omitted). Thus, the county

       where the football fields were located was a preferred venue.


[13]   In Trustees of Purdue Univ. v. Hagerman Constr. Corp., 736 N.E.2d 819 (Ind. Ct.

       App. 2000), trans. denied, Purdue entered into agreements with several

       contractors to construct a building on their campus in Tippecanoe County and

       subsequently filed a declaratory relief action in Tippecanoe County against the

       contractors, including Hagerman. Hagerman objected to venue and moved to

       change venue, and the trial court granted the motion and transferred the case to


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019   Page 8 of 11
       Allen County. A panel of this court held that a sufficient nexus existed between

       the land in Tippecanoe County where the contractor was to perform work and

       Purdue’s action for three reasons: (1) the resolution of whether the contractor

       breached its contractual duty of coordinating and scheduling may require an

       evaluation of the parties’ business relationships, which was centered around the

       project where the land was located; (2) the contractor’s “work” was

       coordinating and scheduling which affected the land where the project was

       located and Purdue’s legal theory was based on the contractor’s alleged poor

       quality of work that affected the land; and (3) Purdue persuasively argued that

       Tippecanoe County was the more convenient venue because potential witnesses

       were located in or near Tippecanoe County. Thus, a panel of this court agreed

       that there was a sufficient nexus between Purdue’s claim and the land making

       Tippecanoe County a preferred venue.


[14]   On appeal, Regal Homes argues that Swenke’s complaint only concerns a

       question of debt and is therefore too remote to relate to the land under Trial

       Rule 75(A)(2). We disagree. Here, Swenke’s complaint alleged: Regal Homes

       failed to perform the terms of the contract; Regal Homes failed to pay a

       subcontractor who completed the demolition on the property; “Regal Homes’

       work at the Danville property was shut down” by the county due to its failure to

       obtain proper permits; after obtaining the proper permits, Regal Homes

       “provided no further work” on the property which forced Swenke to hire

       another builder; Regal Homes would not communicate with Swenke after this;

       and the contract failed to comply with the Indiana Home Improvement Act.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019   Page 9 of 11
       App. of Appellant at 9. Swenke sought a declaratory judgment “stating [that]

       due to Regal Homes[’] failure to perform under the terms of the March 27, 2017

       Document, [he] does not have any obligations to Regal Homes.” Id. at 11.


[15]   Although Swenke ultimately seeks a declaratory judgment that he is not indebted

       to Regal Homes and there are some issues set forth in the complaint that do not

       relate to the land in question, at least one issue set forth in the complaint relates

       to the land. Specifically, Swenke alleges that Regal Homes performed some

       work on the property but later abandoned the work. Thus, the trial court must

       determine whether Swenke is indebted to Regal Homes – an inquiry that hinges

       on evaluating work Regal Homes performed on the land in Hendricks County

       pursuant to the contract. We conclude that there is a sufficient nexus between

       the land and Swenke’s claim. Therefore, Hendricks County is a county of

       preferred venue and the trial court did not abuse its discretion by denying Regal

       Homes’ motion to transfer venue.



                                               Conclusion
[16]   In sum, we conclude Swenke’s action does relate to the land located in

       Hendricks County and that Hendricks County is a preferred venue under Trial

       Rule 75(A)(2). Therefore, the trial court did not abuse its discretion by denying

       Regal Homes’ motion to transfer venue to Putnam County. The order of the

       trial court is affirmed.


[17]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019   Page 10 of 11
Baker, J., and Najam, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-1067 | June 28, 2019   Page 11 of 11
