                                                                    FILED
                                                               Aug 29 2016, 6:32 am

                                                                    CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court




ATTORNEY FOR APPELLANTS                                    ATTORNEY FOR APPELLEES
Leanna Weissmann                                           Grant M. Reeves
Lawrenceburg, Indiana                                      Barada Law Offices LLC
                                                           Rushville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

City of Lawrenceburg, Indiana,                             August 29, 2016
Mayor of Lawrenceburg in his                               Court of Appeals Case No.
official capacity, Common                                  24A05-1603-PL-535
Council of the City of                                     Interlocutory Appeal from the
Lawrenceburg in their official                             Franklin Circuit Court
capacities                                                 The Honorable J. Steven Cox
Appellants-Defendants,                                     Trial Court Cause No.
                                                           24C01-1511-PL-740
        v.

Franklin County, Indiana, & the
Franklin County Board of
Commissioners in their official
capacities,
Appellees-Plaintiffs




Bradford, Judge.



                                     Case Summary

Court of Appeals of Indiana | Opinion 24A05-1603-PL-535 | August 29, 2016                Page 1 of 5
[1]   In 2015, Appellees-Plaintiffs Franklin County and the Franklin County Board

      of Commissioners (collectively, “Franklin”) filed a complaint in Franklin

      Circuit Court alleging breach of contract by Appellants-Defendants the City of

      Lawrenceburg, the mayor of Lawrenceburg, and the common council of

      Lawrenceburg (collectively, “the City”). The City filed a motion, pursuant to

      Trial Rule 76(A), requesting a change of venue from Franklin County to

      Dearborn County. The trial court denied the City’s motion. On appeal, the

      City contends that the trial court erred in denying its motion for change of

      venue. We reverse the trial court’s ruling and remand with instructions.



                             Facts and Procedural History
[2]   On January 17, 2006, the City and Franklin entered into a contract under which

      the City agreed to share riverboat casino earnings with Franklin. On November

      19, 2013, the City notified Franklin of its intent to terminate the agreement. On

      November 18, 2015, Franklin filed a complaint in Franklin Circuit Court

      alleging breach of contract by the City. On January 8, 2016, the City moved to

      change venue, arguing that pursuant to Indiana Trial Rule 76(A), the Franklin

      Circuit Court is an inappropriate venue because Franklin County is a party to

      the lawsuit. On February 12, 2016, the trial court denied the City’s motion to

      change venue.



                                  Discussion and Decision


      Court of Appeals of Indiana | Opinion 24A05-1603-PL-535 | August 29, 2016   Page 2 of 5
[3]   On appeal, the City argues that the trial court erred in denying its motion to

      change venue. Indiana Trial Rule 76(A) provides as follows:


              In civil actions where the venue may be changed from the
              county, such change of venue from the county may be had only
              upon the filing of a verified motion specifically stating the
              grounds therefor by the party requesting the change. The motion
              shall be granted only upon a showing that the county where suit is
              pending is a party or that the party seeking the change will be
              unlikely to receive a fair trial on account of local prejudice or bias
              regarding a party or the claim or defense presented by a party.
              Denial of a motion for change of venue from the county shall be
              reviewable only for an abuse of discretion….


      (emphasis added).


[4]   The City contends that its motion should have been granted because Franklin

      County is a party and the suit is pending in Franklin Circuit Court. For its part,

      Franklin argues that, according to Trial Rule 75(A)(5), Franklin Circuit Court is

      a preferred venue and so the case should not be transferred.

              Preferred venue lies in: … the county where…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;


      T.R. 75(A)(5). Regardless of whether Franklin County is a preferred venue, its

      status as such is trumped by Trial Rule 76(A), which states explicitly that a

      motion requesting a change of venue “shall be granted only upon a showing

      that the county where suit is pending is a party.” That is clearly the case here.

      Court of Appeals of Indiana | Opinion 24A05-1603-PL-535 | August 29, 2016    Page 3 of 5
      Accordingly, the trial court was required to grant the City’s motion and erred in

      failing to do so. See Scott v. Consol. City of Indianapolis, 833 N.E.2d 1094, 1101

      (Ind. Ct. App. 2005) (“According to the plain reading of Trial Rule 76, a change

      of venue occurs when the county is a party to the action.”); see also Bd. of

      Comm’rs of LaPorte Cnty. v. Great Lakes Transfer, LLC, 888 N.E.2d 784, 790 (Ind.

      Ct. App. 2008) (holding that T.R. 76(A) required that the trial court grant the

      motion for change of venue from LaPorte County where LaPorte County was a

      party to the action despite the fact that it was also a preferred venue.).


[5]   The City also claims that the case should be moved to Dearborn County

      specifically. Indiana Trial Rule 76(D) provides the procedure by which a new

      venue is determined following the grant of a Rule 76 change of venue motion:

              Whenever a change of venue from the county is granted, the
              parties may, within three (3) days from the granting of the
              motion or affidavit for the change of venue, agree in open court
              upon the county to which venue shall be changed, and the court
              shall transfer such action to such county. In the absence of such
              agreement, the court shall, within two (2) days thereafter, submit
              to the parties a written list of all counties adjoining the county
              from which the venue is changed, and the parties within seven (7)
              days from the date the clerk mails the list to the parties or within
              such time, not to exceed fourteen (14) days from that date, as the
              court shall fix, shall each alternately strike off the names of such
              counties. The party first filing such motion shall strike first, and
              the action shall be sent to the county remaining not stricken
              under such procedure.


      The City seems to ignore this procedure and argues instead that Dearborn

      County is the appropriate venue because the City is located in Dearborn

      Court of Appeals of Indiana | Opinion 24A05-1603-PL-535 | August 29, 2016    Page 4 of 5
      County, making it a preferred venue. However, Rule 76(D) sets forth specific

      procedural steps for change of venue determinations and preferred venue is not

      a requirement. Accordingly, it is up to the parties on remand to determine a

      new venue in accordance with Rule 76(D).


[6]   The judgment of the trial court is reversed and remanded with instructions.


      Pyle, J., and Altice, J., concur.




      Court of Appeals of Indiana | Opinion 24A05-1603-PL-535 | August 29, 2016   Page 5 of 5
