                                                                                    FILED
                                                                               Feb 09 2018, 8:53 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Duran L. Keller                                            Michael R. Bain
      Keller Law                                                 Lauren M. Hardesty
      Lafayette, Indiana                                         Hume Smith Geddes Green &
                                                                 Simmons, LLP
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kelly Bagsby and Aaron Bagsby,                             February 9, 2018
      Appellants-Plaintiffs,                                     Court of Appeals Case No.
                                                                 79A02-1706-CT-1315
              v.                                                 Appeal from the Tippecanoe
                                                                 Circuit Court
      Riley T. Snedeker,                                         The Honorable Thomas H. Busch,
      Appellee-Defendant.                                        Judge
                                                                 Trial Court Cause No.
                                                                 79C01-1702-CT-30



      Mathias, Judge.

[1]   Kelly and Aaron Basgby (the “Bagsbys”) appeal from the Tippecanoe Circuit

      Court’s order granting Riley T. Snedeker’s (“Snedeker”) motion to transfer

      venue.


[2]   We affirm.



      Court of Appeals of Indiana | Opinion 79A02-1706-CT-1315 | February 9, 2018                       Page 1 of 10
                                  Facts and Procedural History
[3]   On January 23, 2017, Snedeker allegedly shot and killed the Bagsbys’ dog in

      Warren County, Indiana. At the time, Snedeker and the Bagsbys were

      neighbors in Pine Village, Indiana which is located in Warren County. After the

      alleged shooting, the Bagsbys took their dog for a necropsy to the Animal

      Disease Diagnostic Laboratory in Tippecanoe County. After the necropsy, the

      Bagsbys filed a complaint against Snedeker in Tippecanoe County on February

      24 for conversion, intentional infliction of emotional distress, negligent

      infliction of emotional distress, trespass to chattel, and negligence.


[4]   On April 17, Snedeker filed a motion to correct venue and transfer the action to

      Warren County under Indiana Trial Rules 12(B)(3) and 75(A). On May 23, the

      trial court held a hearing on Snedeker’s motion. Three days later the trial court

      granted the motion and explained:


              In this case, everything about the case up to and including the
              incident which gave rise to the Complaint occurred in and was
              located in Warren County and had no connection to Tippecanoe
              County. Only because plaintiffs chose a particular pathologist to
              examine the remains of the dog and to retain the body of the dog
              does Tippecanoe County have any connection to the case at all.
              The dog at issue was regularly kept in Warren County until it
              was killed in the incident which gave rise to the Complaint. The
              Court finds that whatever happened to it afterwards is immaterial
              to venue.




      Court of Appeals of Indiana | Opinion 79A02-1706-CT-1315 | February 9, 2018   Page 2 of 10
      Appellants’ App. p. 36. The Bagsbys now bring this interlocutory appeal as a

      matter of right under Indiana Appellate Rule 14(A)(8). Additional facts will be

      provided as necessary.


                                      Discussion and Decision
[5]   The Bagsbys contend that the trial court erred in granting Snedeker’s motion to

      transfer venue from Tippecanoe County to Warren County because they assert

      Tippecanoe County is a preferred venue. We review a trial court’s ruling on a

      motion to transfer venue for an abuse of discretion. Muneer v. Muneer, 951

      N.E.2d 241, 243 (Ind. Ct. App. 2011). “An abuse of discretion occurs when the

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

      circumstances before the trial court, or when the trial court has misinterpreted

      the law.” Id. A trial court’s factual findings linked to a motion to change venue

      are reviewed for clear error, and its rulings of law are reviewed de novo. Belcher

      v. Kroczek, 13 N.E.3d 448, 451 (Ind. Ct. App. 2014). Factual findings are clearly

      erroneous when the record lacks any evidence or reasonable inferences to

      support them. Id.


[6]   Our supreme court has explained:


              Trial Rule 75 governs venue requirements in Indiana. It contains
              ten subsections, each setting forth criteria establishing “preferred”
              venue. 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. T.R. 75(A). The rule does not
              create a priority among the subsections establishing preferred
              venue. If the complaint is filed in a county of preferred venue,
      Court of Appeals of Indiana | Opinion 79A02-1706-CT-1315 | February 9, 2018   Page 3 of 10
               then the trial court has no authority to transfer the case based
               solely on preferred venue in one or more other counties.


      Am. Family Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 973–74 (Ind. 2006)

      (citations omitted). The relevant portion of Trial Rule 75(A) reads:


               Any case may be venued, commenced and decided in any court
               in any county, except, that upon the filing of a pleading or a
               motion to dismiss allowed by Rule 12(B)(3), the court, 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, shall order the case transferred to a
               county or court selected by the party first properly filing such
               motion or pleading if the court determines that the county or
               court where the action was filed does not meet preferred venue
               requirements or is not authorized to decide the case and that the
               court or county selected has preferred venue and is authorized to
               decide the case. Preferred venue lies in:


                                                          ***

               (2) the county where the land or some part thereof is located or
               the chattels1 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 . . . .


[7]   The Bagsbys argue that Tippecanoe County is a preferred venue under Trial

      Rule 75(A)(2) because the chattel at issue is the Bagsbys’ dog which is located




      1
        A dog is personal property, Lachenman v. Stice, 838 N.E.2d 451, 467 (Ind. Ct. App. 2005), trans. denied, and
      thus falls within the definition of a chattel for purposes of Trial Rule 75(A)(2). See Black’s Law Dictionary
      (10th ed. 2014).

      Court of Appeals of Indiana | Opinion 79A02-1706-CT-1315 | February 9, 2018                        Page 4 of 10
      in Tippecanoe County, and the Bagsbys intend to bury the dog in Tippecanoe

      County where they own a home. As the Bagsbys note, the issue before us is

      whether Tippecanoe Circuit Court is a court of preferred venue under Trial

      Rule 75. Both parties cite to the same two cases to support their respective

      positions.


[8]   In R & D Transport, Inc. v. A.H., 859 N.E.2d 332, 337 (Ind. 2006), our supreme

      court found that the trial court erred in denying the defendant’s motion to

      change venue. In that case, an R & D Transport, Inc. (“R & D”) employee was

      driving a tractor-trailer when it collided with a vehicle in which A.H. was the

      passenger. The accident occurred in Dearborn County, the employee’s

      residence and R & D’s principal place of business was in Hendricks County,

      and A.H. lived in Porter County. A.H.’s mother filed suit in Porter County

      because the accident resulted in the loss of several of A.H.’s medical and

      personal possessions which were regularly located in Porter County. R & D

      sought to have the case transferred to either Dearborn County or Hendricks

      County. The trial court denied the motion, and R & D appealed.


[9]   On appeal, our supreme court held the trial court erred, and that Porter County

      was not a county of preferred venue. Id. In reaching its conclusion, the court

      examined two cases from this court, factually similar to the case before us, and

      determined that they were wrongly decided. Id. at 334. First, in Swift v. Pirnat,

      828 N.E.2d 444 (Ind. Ct. App. 2005), the plaintiff suffered injuries in an

      automobile accident in Vanderburgh County. However, a tape recorder was

      Court of Appeals of Indiana | Opinion 79A02-1706-CT-1315 | February 9, 2018   Page 5 of 10
       damaged in the accident that the plaintiff used for work in Vigo County. A

       panel of this court found that Vigo County was a preferred venue. Id. at 448.

       The Swift court noted “that because [plaintiff] alleged injury to chattels in her

       complaint, Subsection (A)(2) clearly and unambiguously allows preferred venue

       to lie in the county where the chattel is located.” Id. at 449.


[10]   And second, in Halsey v. Smeltzer, 722 N.E.2d 871 (Ind. Ct. App. 2000), trans.

       denied, plaintiffs were involved in an automobile accident in Noble County. In

       addition to personal injuries, certain personal effects were also damaged. A

       panel of this court found that the plaintiffs’ home county was a preferred venue

       and that “the trial court did not err in interpreting T.R. 75(A) such that a case

       involving injury to chattels could be brought in the county where the chattels

       were kept.” Id. at 874.


[11]   The R & D Transport court found that Swift and Halsey were wrongly decided for

       three reasons. 859 N.E.2d at 334. The first reason, which is most pertinent to

       the case before us, is that “the focus of T.R. 75(A)(2) is the location of the

       property or activity that gives rise to a claim.” Id. Our supreme court then

       explained that when Trial Rule 75(A)(2) was amended to include chattels, this

       “signified a broadened understanding of what kind of property might be

       important to determining venue, but . . . the significance of real or personal

       property’s location [is] the most important factor.” Id. at 335 (emphasis in

       original). Therefore, the court found that Porter County was not a preferred

       venue under Trial Rule 75(A)(2) because the location where the plaintiff kept

       Court of Appeals of Indiana | Opinion 79A02-1706-CT-1315 | February 9, 2018   Page 6 of 10
       certain chattels “played no role in the accident itself or in the claims of the

       lawsuit she filed.” Id.


[12]   The second case cited by both parties is this court’s decision in Gulf Stream

       Coach, Inc. v. Cronin, 903 N.E.2d 109 (Ind. Ct. App. 2009). In that case, a

       Pennsylvania family, the Cronins, purchased a Gulf Stream RV in Florida. The

       RV’s owner manual stipulated that any lawsuit related to the mobile home

       needed to be filed in Indiana. Within months, the Cronins began having several

       problems with the RV eventually leading to a mold and mildew problem that

       made it uninhabitable. The Cronins contacted an Indiana attorney, and the RV

       sat in a lot near the attorney’s office in Madison County for seven months

       before the Cronins filed suit against Gulf Stream. Gulf Stream asserted that

       Madison County was not a preferred venue and moved to transfer venue to

       Elkhart County where its principal office is located. The trial court denied Gulf

       Stream’s motion stating in relevant part, “The motor home was regularly kept

       in Madison County for several months prior to the filing of suit, and it

       continues to be kept there.” Id. at 111.


[13]   On appeal, a panel of this court determined that the Cronins moved the RV to

       Madison County in anticipation of litigation. Id. at 113. We then held, “when a

       party moves a chattel to a county . . . solely for purposes of litigation, that

       county does not become the county where the chattel is ‘regularly located and

       kept’ under Rule 75(A)(2) and therefore is not a preferred venue under Rule

       75.” Id.

       Court of Appeals of Indiana | Opinion 79A02-1706-CT-1315 | February 9, 2018   Page 7 of 10
[14]   The Bagsbys distinguish the case before us from both R & D Transport and Gulf

       Stream. They assert that R & D Transport is different because it involved an

       automobile accident. And Gulf Stream is inapplicable because the Bagsbys did

       not take their dog to Tippecanoe in anticipation of litigation, but rather, because

       it is where they wanted the dog to have a necropsy, where they would bury the

       dog, and because they own real property there. Snedeker contends that under

       our supreme court’s decision in R & D Transport, the trial court did not abuse its

       discretion here because “Tippecanoe County played no role in the actual

       incident giving rise to the lawsuit, and the actual incident took place in Warren

       County.” Appellee’s Br. at 7. Snedeker also maintains that “Gulf Stream is

       applicable to cases where the parties disagree over the location the chattel was

       ‘regularly located or kept.’” Id. at 8. We agree with Snedeker.


[15]   Our supreme court expressly rejected the argument asserted by the Bagsbys here

       when it determined Swift and Halsey were wrongly decided. R & D Transp., Inc.,

       859 N.E.2d at 334. It is immaterial that Swift, Halsey, and R & D Transport all

       concerned automobile accidents. The findings that the R & D Transport court

       disapproved of in Swift and Halsey, with respect to venue and pertinent to the

       case before us, were in regard to the location of the chattels. R & D Transp., Inc.,

       859 N.E.2d at 334–35. Both Snedeker and the Bagsbys lived in Warren County

       when the dog was allegedly shot. Further, the dog lived in and was allegedly

       shot in Warren County. And the Bagsbys’ entire complaint is based on the

       incident in Warren County. See id. at 335.



       Court of Appeals of Indiana | Opinion 79A02-1706-CT-1315 | February 9, 2018   Page 8 of 10
[16]   Moreover, the current location of the dog in Tippecanoe County played no role

       in the alleged shooting or any of the claims in the lawsuit. Cf. Surfware, Inc. v.

       Allied Specialty Precision, Inc., 876 N.E.2d 1156, 1160 (Ind. Ct. App. 2007)

       (finding a county of preferred venue in a county where the accident and

       resulting damages occurred). Our court in Gulf Stream found venue improper in

       Madison County even though the RV had been sitting there for several months.

       903 N.E.2d at 113. The court noted that if Madison County was a preferred

       venue, then “[a]n Indiana resident in one county who wanted to file a claim

       relating to a chattel could establish preferred venue anywhere in the state by

       moving the chattel to a different county.” Id. We acknowledge that the primary

       reason for the court’s decision in Gulf Stream was that the RV was moved in

       anticipation of ligation, and we make no judgment here as to whether or not the

       Bagsbys moved their dog to Tippecanoe County in anticipation of litigation. 2

       However, this difference does not dilute our court’s concern in Gulf Stream

       regarding forum shopping that we find particularly applicable here.


[17]   If we were to hold that Tippecanoe is a preferred county under Indiana Trial

       Rule 75(A)(2), then as the trial court aptly stated, “any plaintiff could move [a]

       chattel to a favorable venue and assert he did so for a non-litigation reason. This

       would require conducting an evidentiary hearing as to the plaintiff’s motivation

       in every case.” Appellants’ App. p. 36. We share the concern expressed by the



       2
        Snedeker does not argue that the Bagsbys moved the dog in anticipation of litigation. Appellee’s Br. at 7
       n.1.

       Court of Appeals of Indiana | Opinion 79A02-1706-CT-1315 | February 9, 2018                      Page 9 of 10
       trial court. Such a holding would go against the spirit and intent of the preferred

       venue rules, and we decline to do so. See Randolph County v. Chamness, 879

       N.E.2d 555, 557 (Ind. 2008). Therefore, Tippecanoe is not a preferred county,

       and the trial court did not err when it granted transfer to Warren County.



                                                  Conclusion

[18]   Based on the facts and circumstances before us, we find that the trial court did

       not abuse its discretion when it granted Snedeker’s motion to transfer venue to

       Warren County. Accordingly, we affirm.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 79A02-1706-CT-1315 | February 9, 2018   Page 10 of 10
