      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                     FILED
      this Memorandum Decision shall not be
                                                                            Mar 14 2018, 9:04 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
      Jeffrey A. Boyll                                         Neal F. Eggeson, Jr.
      Wilkinson, Goeller, Modesitt,                            Eggeson Appellate Services
      Wilkinson & Drummy, LLP                                  Indianapolis, Indiana
      Terre Haute, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Good Samaritan Hospital,                                 March 14, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A04-1711-CT-2559
              v.                                               Appeal from the
                                                               Marion Superior Court
      Roderick W. Brady,                                       The Honorable
      Appellee-Plaintiff.                                      Gary L. Miller, Judge
                                                               Trial Court Cause No.
                                                               49D03-1709-CT-34903



      Kirsch, Judge.


[1]   In this interlocutory appeal, Good Samaritan Hospital (“Good Samaritan”)

      challenges the Marion Superior Court’s denial of its motion for transfer to

      county of preferred venue, raising the following restated issue: whether the trial

      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CT-2559 | March 14, 2018          Page 1 of 12
      court erred when it denied Good Samaritan’s motion for transfer of venue to

      Knox County as the county of preferred venue.


[2]   We reverse and remand.


                                  Facts and Procedural History
[3]   The issue before this court arises from a medical malpractice action. In

      September 2014, Dr. David G. Purdom (“Dr. Purdom”) performed an

      exploratory laparotomy on Roderick W. Brady (“Brady”) at Good Samaritan,

      which is located in Knox County, Indiana. Nurses, also employed by Good

      Samaritan, assisted Dr. Purdom during the procedure. Thereafter, Brady’s

      condition deteriorated, and he was transferred to the intensive care unit. In

      October 2014, Dr. Purdom performed a “re-laparotomy” and removed a

      medical sponge, which had been left during the prior laparotomy. Appellant’s

      App. Vol. 2 at 16.


[4]   On September 13, 2017, Brady, as a resident of Marion County, filed his

      medical malpractice complaint for damages in Marion Superior Court against

      Good Samaritan as the sole defendant.1 Id. at 15. On September 25, Good

      Samaritan filed its motion for transfer of venue, asserting that Marion County

      was not a county of preferred venue under Indiana Trial Rule 75, and that “the




      1
        Brady notes in his brief and alleged in his complaint: “This matter was commenced in the Indiana
      Department of Insurance per the Indiana Medical Malpractice Act, seeking statutory remedies and following
      the proceedings set forth in the Act. [Brady]’s Complaint for Damages is being filed pursuant to [Indiana
      Code §] 34-18-8-1.” Appellant’s App. Vol. 2 at 15; Appellant’s Br. at 6.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CT-2559 | March 14, 2018        Page 2 of 12
      only county of preferred venue is Knox County.” Id. at 6. Attached to that

      motion was the affidavit of Robert McLin, the CEO of Good Samaritan.

      McLin averred that: (1) “the principal office of Good Samaritan was located in

      Vincennes, Knox County, Indiana”; and (2) “Good Samaritan has no

      connection to Marion County.” Id. at 8.


[5]   On October 10, 2017, Brady filed his objection and response to the motion for

      transfer of venue, arguing that (1) Good Samaritan’s motion for transfer of

      venue was procedurally deficient; and (2) pursuant to Indiana Trial Rule

      75(A)(8), Marion County was also a county of preferred venue for a claim

      under the Medical Malpractice Act (“MMA”).2 Without a hearing, the trial

      court summarily denied Good Samaritan’s motion for transfer of venue. Good

      Samaritan now appeals.


                                       Discussion and Decision
[6]   Good Samaritan contends that Knox County is the only county of preferred

      venue, and therefore, the trial court abused its discretion when it denied Good

      Samaritan’s motion for transfer from Marion County to Knox County. The

      trial court’s decision on a motion such as this is an interlocutory order that is

      subject to review under an abuse of discretion standard. Ind. Appellate Rule




      2
       Indiana Trial Rule 75(A)(8) provides: Preferred venue lies in “the county where a claim in the plaintiff’s
      complaint may be commenced under any statute recognizing or creating a special or general remedy or
      proceeding.” Brady contends that the Medical Malpractice Act (“MMA”) creates just such a special or
      general remedy or proceeding.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CT-2559 | March 14, 2018             Page 3 of 12
      14(A)(8); Ind. Trial Rule 75(E); Shelton v. Wick, 715 N.E.2d 890, 893 (Ind. Ct.

      App. 1999), 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 court has misinterpreted the law. Grimes v. Crockrom,

      947 N.E.2d 452, 454 (Ind. Ct. App. 2011). Here, the parties present a question

      of statutory interpretation. Interpretation of a statute is a question of law,

      which we review de novo. Wall v. Plummer, 13 N.E.3d 420, 422 (Ind. Ct. App.

      2014). We first decide whether the statutory language is clear and

      unambiguous on its face. Strozewski v. Strozewski, 36 N.E.3d 497, 499 (Ind. Ct.

      App. 2015). “In interpreting the statute, ‘we will attempt to determine and give

      effect to the intent of the legislature.’” Wall, 13 N.E.3d at 422 (quoting Dykstra

      v. City of Hammond, 985 N.E.2d 1105, 1107 (Ind. Ct. App. 2013), trans. denied).


[7]   Trial Rule 75 governs venue requirements in Indiana. Painters Dist. Council 91 v.

      Calvert Enters. Elec. Servs., Inc., 906 N.E.2d 254, 257 (Ind. Ct. App. 2009). It

      contains ten subsections, each setting forth criteria that establish “preferred”

      venue. Id. “A case or complaint may be filed in any county in Indiana, but if

      the complaint is not filed in a preferred venue, the court is required to transfer

      the case to a preferred venue upon the proper request from a party.” Id. The

      case must be transferred to the county selected by the party that first files 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) (emphasis

      added). The rule does not create a priority among the subsections establishing

      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CT-2559 | March 14, 2018   Page 4 of 12
      preferred venue. Id. Trial Rule 75(A) does not always produce preferred venue

      at the most convenient location. Painters Dist., 906 N.E.2d at 257. Rather, it

      provides a number of grounds that can establish preferred venue. Id. If the

      action has been commenced in a county of preferred venue, no transfer will be

      granted. Shelton, 715 N.E.2d at 893.


[8]   The following subsections of Trial Rule 75 are pertinent to this appeal:


              (A) . . . Preferred venue lies in:


              ....


              (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; or


              ....


              (8) the county where a claim in the plaintiff’s complaint may be
              commenced under any statute recognizing or creating a special or
              general remedy or proceeding[.]


      T.R. 75(A)(4) (emphasis added). In its motion to transfer, Good Samaritan

      stated that Knox County is a preferred venue pursuant to Trial Rule 75(A)(4).

      In his response to the motion, Brady countered: (1) that Good Samaritan’s

      motion was procedurally deficient to trigger transfer; and (2) since the MMA

      “create[s] a special . . . proceeding” in Marion County for medical malpractice
      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CT-2559 | March 14, 2018   Page 5 of 12
       actions, preferred venue lies in Marion County and transfer is prohibited.

       Appellant’s App. Vol. 2 at 9.


[9]    A court must decide issues of venue “from allegations of the complaint or after

       hearing evidence thereon or considering affidavits or documentary evidence

       filed with the motion or in opposition to it.” T.R. 75(A). Here, the complaint

       set forth that Brady was a resident of Marion County, who was filing his

       malpractice complaint pursuant to Indiana Code section 34-18-8-1. CEO

       McLin’s affidavit, which was attached to Good Samaritan’s motion for transfer

       to county of preferred venue, stated that Good Samaritan was the defendant

       organization that had a principal office located in Vincennes, Knox County,

       Indiana. CEO McLin’s affidavit was sufficient to prove Good Samaritan’s

       contention that Knox County was a preferred venue. However, that

       determination was of no import unless Marion County was not a county of

       preferred venue. The reason being that, if the action had been commenced in a

       county of preferred venue, transfer would not have been warranted under Trial

       Rule 75. Shelton, 715 N.E.2d at 893. Thus, denial of Good Samaritan’s motion

       required either: (1) that Good Samaritan’s motion for transfer to county of

       preferred venue was procedurally deficient to trigger a transfer of venue; or (2)

       that Marion County was a county of preferred venue. We discuss these issues

       in turn.


[10]   Trial Rule 75(A) provides that “any case may be venued commenced and

       decided in any county,” but “upon the filing of a pleading or motion to dismiss

       allowed by Rule 12(B)(3),” it shall be transferred if the county where it was filed

       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CT-2559 | March 14, 2018   Page 6 of 12
       does not meet preferred venue requirements. Here, Brady contends that Good

       Samaritan’s motion failed because it was not “styled a Motion to Dismiss,” and

       “never invoke[d] T.R. 12(B).” Appellee’s Br. at 8. We are unpersuaded.


[11]   Trial Rule 12(B)(3) does not set forth strict guidelines to follow regarding the

       necessary motion, and instead, it provides:


               Every defense, in law or fact, to a claim for relief in any pleading,
               whether a claim, counterclaim, cross-claim, or third-party claim,
               shall be asserted in the responsive pleading thereto if one is
               required; except that at the option of the pleader, the following defenses
               may be made by motion:


               ....


               (3) Incorrect venue under Trial Rule 75, or any statutory
               provision. The disposition of this motion shall be consistent with
               Trial Rule 75[.]


       T.R. 12(B)(3) (emphasis added). Trial Rule 75 does not require that a motion

       to transfer make reference to Trial Rule 12(B)(3) or even that it include words

       related to dismissal. Further, regardless of whether Good Samaritan had titled

       its motion as a motion to dismiss, dismissal was not the proper remedy.

       “‘When a motion brought under T.R. 12(B)(3) and T.R. 75 is granted, the

       remedy is not to dismiss the case, but to transfer it to the court where it should

       have been brought initially.” Woodard v. Woodard, 794 N.E.2d 484, 486 (Ind.

       Ct. App. 2003) (quoting Hollingsworth v. Key Benefit Adm’rs, Inc., 658 N.E.2d

       653, 655 (Ind. Ct. App. 1995), trans. denied), trans. denied. Indiana courts


       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CT-2559 | March 14, 2018   Page 7 of 12
       “decline to favor form over substance.” In re Scott David Hurwich 1986 Irrevocable

       Tr., 59 N.E.3d 977, 980 (Ind. Ct. App. 2016). Notwithstanding Brady’s

       contention that Good Samaritan’s motion was procedurally deficient and

       should have been in a specific form, it is clear from the record that the parties

       and the trial court all understood that Good Samaritan wanted the case

       transferred to Knox County as a preferred venue. We reject Brady’s claim that

       Good Samaritan’s motion to transfer was procedurally deficient.


[12]   We next turn to whether Marion County was a county of preferred venue.

       Regarding preferred venue, we have held that “‘[i]t is the general spirit and

       policy of the rules governing venue to give the defendant the right to have the

       action tried in the county of his or her residence.’” Salsbery Pork Producers, Inc. v.

       Booth, 967 N.E.2d 1, 5 (Ind. Ct. App. 2012) (quoting State ex rel. Ind. State Bd. of

       Tax Comm’rs v. Ind. Chamber of Commerce, Inc., 712 N.E.2d 992, 996 (Ind. Ct.

       App. 1999)). “However, there is no ‘priority among the subsections

       establishing preferred venue.’” Id. (quoting Coffman v. Olson & Co., P.C., 872

       N.E.2d 145, 147 (Ind. Ct. App. 2007)). Thus, “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. In the absence of a

       procedural deficiency, the trial court’s denial of Good Samaritan’s motion to

       transfer to Knox County was appropriate only if Marion County, Brady’s

       choice of venue, was also a county of preferred venue.


[13]   Brady relies on Trial Rule 75(A)(8), which allows preferred venue to lie in “the

       county where a claim in the plaintiff’s complaint may be commenced under any

       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CT-2559 | March 14, 2018   Page 8 of 12
       statute recognizing or creating a special or general remedy or proceeding[.]”

       (Emphasis added). The meaning of this subsection is a question of law. In his

       response to Samaritan’s motion, Brady argued, that “[b]y definition, the

       [MMA] creates a special proceeding for resolution of medical malpractice

       actions.” Appellant’s App. Vol. 2 at 11 (emphasis added). As support for his

       position that the MMA makes Marion County a preferred venue, Brady cites to

       the following language in Indiana Code section 34-18-15-3, which pertains

       specifically to suits filed against the Patient’s Compensation Fund:


               If a health care provider or its insurer has agreed to settle its
               liability on a claim by payment of its policy limits established in
               IC 34-18-14-3(b) and IC 34-18-14-3(d), and the claimant is
               demanding an amount in excess of that amount, the following
               procedure must be followed:


               (1) A petition shall be filed by the claimant in the court named in
               the proposed complaint, or in the circuit or superior court of Marion
               County, at the claimant’s election . . . .


       Brady reasons that Marion County must be a preferred venue for all medical

       malpractice claims because Marion County is a stated venue in which to file a

       claim, pursuant to Indiana Code chapter 34-18-15, seeking payments from the

       Patient’s Compensation Fund in excess of settlement. Appellant’s App. Vol. 2 at

       11-12. We are unconvinced that Marion County is a preferred venue under the

       facts of this case.


[14]   Here, Brady did not file suit against the Patient’s Compensation Fund. The

       record before us reflects no discussion regarding settlement, or even talk that the

       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CT-2559 | March 14, 2018   Page 9 of 12
       parties were engaged in negotiations. In his complaint, Brady alleged,

       “Plaintiff’s complaint for damages is being filed pursuant to I.C. [section] 34-18-

       8-1.” Appellant’s App. Vol. 2 at 15. That section, in pertinent part, provides,

       “[A] patient or the representative of a patient who has a claim under this article

       for bodily injury or death on account of malpractice may do the following: (1)

       File a complaint in any court of law having requisite jurisdiction.” I.C. § 34-18-

       8-1 (emphasis added). That section allows a party to file a medical malpractice

       action in any county, showing no preference for Marion or any other county.


[15]   Even so, Brady states that the MMA has special remedies or proceedings (as

       described in Trial Rule 75(A)(8)) that allow Marion County to be a preferred

       venue.3 He suggests that the cap on compensatory damages, the need to seek

       excess damages from the Patient’s Compensation Fund, the control over

       attorney fees, and the unique hearsay exceptions and foundational requirements

       for expert testimony are all specific to the MMA. Such factors, however, are

       distinguishable from the context in which our court has found preferred venue

       under Trial Rule 75(A)(8). Subsection (A)(8) “‘adopts special venue statutes

       into the regulatory scheme of T.R. 75.’” MacLeod v. Guardianship of Hunter, 671




       3
         Brady also contends that Marion County must be a preferred venue under the MMA because it requires that
       claims must be commenced in the Indiana Department of Insurance and first presented to a medical review
       panel, which is chaired by a Marion County attorney. Appellant’s App. Vol. 2 at 11-12. Again, we disagree.
       Notwithstanding the need to file a proposed complaint with the medical review panel, our court has held that
       an action under the MMA is commenced within the meaning of our trial rules by filing a complaint with the
       court. Shelton v. Wick, 715 N.E.2d 890, 894 (Ind. Ct. App. 1999). “Submitting a proposed complaint to the
       Department of Insurance does nothing more than toll the statute of limitations and satisfy the statutory
       condition precedent to commencing a medical malpractice action.” Id.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CT-2559 | March 14, 2018         Page 10 of 12
N.E.2d 177, 179 (Ind. Ct. App. 1996), trans. denied. In that way, Trial Rule

75(A)(8) “retains the ‘statutory’ venue as an alternative venue, thereby avoiding

any conflict.” Id. (citation omitted); see Strozewski, 36 N.E.3d at 500 (Indiana

Code section 31-15-2-6 requires “at least one of the parties must have been a

resident of Indiana for six months immediately preceding the filing of the

petition and at least one of the parties must have been a resident of the county

where the petition is filed for at least three months immediately preceding the

filing”); Muneer v. Muneer, 951 N.E.2d 241, 243 (Ind. Ct. App. 2011) (although

any court of record has jurisdiction to issue a civil order for protection, pursuant

to Indiana Code section 34-26-5-4, a petition for such order must be filed in

county where petitioner resides, respondent resides, or violence occurred);

Shelton, 719 N.E.2d at 896 (“The Indiana Probate Code provides that all claims

against a decedent’s estate are to be filed with the court in which such estate is

being administered.”). Cf. Comm’r of Labor v. An Island, LLC, 948 N.E.2d 1189,

1192 (Ind. Ct. App. 2011) (finding that Trial Rule 75(A)(8) does not apply to

the Wage Claims Act, which “allows recovery of wage claims in any county

with jurisdiction over the suit” but does not designate venue in a particular

county), trans. denied. Because the MMA does not create a special venue that

conflicts with Trial Rule 75(A), Marion County was not a preferred venue.4




4
  Brady’s other arguments regarding Marion County being a preferred venue—that Good Samaritan
voluntarily availed itself of the protections of the MMA and that judicial economy and efficient use of court
resources necessitates that Marion County is preferred venue—do not arise under T.R. 75(A); therefore, we
do not address them.

Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CT-2559 | March 14, 2018            Page 11 of 12
[16]   Knox County was a preferred venue under Trial Rule 75(A)(4), and Marion

       County was not a preferred venue under Trial Rule 75(A)(8). Accordingly, the

       trial court abused its discretion when it denied Good Samaritan’s motion for

       transfer to Knox County as a county of preferred venue. We remand this case

       with orders to transfer it to Knox County for further proceedings.


[17]   Reversed and remanded.


[18]   Bailey, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CT-2559 | March 14, 2018   Page 12 of 12
